In my final post on Locke’s theory of appropriation/expropriation, a while back, I mentioned that his latter-day successors, Nozick and Rothbard didn’t offer any improvement. I said at the time I would spell this out a bit more. I’ll start with Rothbard who is more politically relevant, and also, in my opinion, more interesting. As an example, at least during his 1960s flirtation with the radical left, and at the time he developed the theory of ‘homesteading’, he favored reparations for slavery.
The core of Rothbard’s position is that appropriation of property justifies ownership even without the Lockean proviso that ‘enough and as good’ is left over for others. Rothbard doesn’t, as far as I can see, go far beyond presenting this as a self-evident truth, and in any case, I don’t propose to argue about in detail. Rather, I want to look at Rothbard’s choice of the term ‘homesteading’ to describe this process. This choice of term is self-refuting in two ways, one that applies to any historical process of appropriation/expropriation and the other specific to the US.
The general point is that the term ‘homestead’ connotes the home of an independent small farmer. There is, however, nothing in Rothbard’s theory to prevent his principle being applied to properties of arbitrary physical size.
The history of European settlement of the New World is full of struggles between early arrivers who turned their cattle loose over vast areas and established vast estates, with or without the prior sanction of the local state power, and latecomers seeking to establish their own homesteads for small-scale self-sufficient farming. After varying periods of conflict, these disputes were eventually arbitrated by state power, typically in ways that gave at least some rights to both sides. (fn: Nozick ‘refutes’ this principle with the silly-clever example of someone pouring a can of tomato juice into the Pacific Ocean. Given the ready availability of real-world cases to consider, this is the kind of philosophical thought experiment that really gets my goat). Rothbard’s terminology suggests the favors the small farmer in this case, but his principle favors the vast estate. Perhaps the term ‘homestead’ is supposed to imply some prohibition on massive claims, but if so, who does Rothbard think will do the arbitration.
There’s a more direct problem for Rothbard as an American. In the US context, ‘homesteading’ has a specific legal and historical meaning. It refers to the granting, by the US state, and subject to a range of conditions, of land previously expropriated from the indigenous inhabitants. The classic piece of legislation was the Homestead Act of 1862, which granted 160 acres of public land to any US citizen willing to settle on and farm the land for at least five years. Among the beneficiaries of this government largesse were the forebears of Cliven Bundy, who homesteaded land in 1877.
Bundy’s claim is that, having inherited land received as a conditional grant from the state, he should now be free of those conditions. This is the same claim made by the great majority of propertarians: despite their belief that the state which created and enforces the property rights system under which we live is an organized system of theft and enslavement, they believe that the property rights they claim should be given to them free of the obligations (for example, the payment of taxes) under which they were granted.
It’s unclear whether Rothbard actually endorsed this claim. His 1969 piece has an interesting discussion of post-socialist privatisation which illustrates the difficulties involved (I’ve changed some notation for clarity)
Suppose, for example, that B steals A’s horse. Then C comes along and takes the horse from B. Can C be called a thief? Certainly not, for we cannot call a man a criminal for stealing goods from a thief. On the contrary, C is performing a virtuous act of confiscation, for he is depriving thief A of the fruits of his crime of aggression, and he is at least returning the horse to the innocent “private” sector and out of the “criminal” sector. C has done a noble act and should be applauded. Of course, it would be still better if he returned the horse to A, the original victim. But even if he does not, the horse is far more justly in C’s hands than it is in the hands of B, the thief and criminal.
So far so good. But what if D comes along, knowing nothing of A. Then C appears as having stolen B’s horse, and D is therefore justified in confiscating it. Obviously we can proceed through the alphabet to Z. More interestingly, what if Z claims that A stole the horse’s sire from her (Z’s) grandmother. We have a closed circle in which every claim is as justified (or not) as any other.
A look at the history of any irredentist territorial claim will show that there’s nothing fanciful about a cycle of this kind.
Where does this leave us? Dumping Locke’s proviso doesn’t make a doctrine of property rights based on appropriation/expropriation any more appealing. Nozick’s use of a term that specifically describes rights created by the US state simply emphasizes the point that property rights are always and everywhere social constructs. Your property rights are those that are accepted and enforced by the society to which you belong.
The justice or otherwise of a set of property rights can’t be assessed separately from that of the social structure of which it is a part. To the extent that the social structure is just or unjust, a property rights system that effectively supports and reinforces that social structure shares that character.
Finally, how does this relate to the feeling of rightful possession which all of us have with regard to various things, some but not all of which are recognised as property? A system of property rights works better if the rights it creates tend to coincide with feelings of rightful possession on the part of both the owners and other members of society. Those feelings partly reflect inherent relationships and are partly created by the fact of legal property ownership. For example, I regard my ideas as my own even if, as works for hire, they are the intellectual property of my employer, who may sell them to some third party. But that third party will also claim rightful possession and will feel entirely justified in preventing me from infringing their rights by using what is, from their viewpoint, their idea.
{ 43 comments }
Z 09.29.16 at 9:59 am
If indeed you’ve changed some notations for clarity, I think you should go all the way and replace “he is depriving thief A” with “he is depriving thief B.” Also, my grandmother reports no stolen sire, so any claim of mine to the contrary should be taken with a grain of salt.
To the extent that the social structure is just or unjust, a property rights system that effectively supports and reinforces that social structure shares that character.
I agree with the clause immediately preceding this one but that one seems to me to be subtly logically stronger in that it seems to give logical precedence to the social structure. I am sympathetic with the sentiment, but I think it is in fact perhaps too bold. The difficulty is that property and especially the familial transmission thereof is intimately interwoven with anthropological structures so that the anthropological conception of property in a give human society will at least be in part a pre-condition to the establishment of a social structure and the sense of justice or injustice that this social structure will entail. First, the anthropological structure determines a mode of relation to property, then this intuitive relation interacts with social and legal institutions. Perhaps I am being too abstract. To take concrete examples, the same institutional and social structures will lead to vastly different modes of capitalist appropriation when superimposed on the anthropological system of say, England, Switzerland, Lebanon or Russia.
Tim Worstall 09.29.16 at 10:48 am
“The classic piece of legislation was the Homestead Act of 1862, which granted 160 acres of public land to any US citizen willing to settle on and farm the land for at least five years.”
Given the mention of slavery it’s perhaps worth noting that the entire point of the Homestead Act was to be against slavery. Populate those lands with yeomen farmers rather than allow them to become large estates which might be managed with slave labour. There’s a reason why it was discussed throughout the 40s and 50s but only became law in 1862.
“Bundy’s claim is that, having inherited land received as a conditional grant from the state, he should now be free of those conditions. This is the same claim made by the great majority of propertarians: despite their belief that the state which created and enforces the property rights system under which we live is an organized system of theft and enslavement, they believe that the property rights they claim should be given to them free of the obligations (for example, the payment of taxes) under which they were granted.”
The conditions were, claim it, farm it for 5 years, build a house, then it’s yours. There were no other conditions, so, having fulfilled them it would seem that it is their property. And as to taxes what taxes were there on frontier farmers in those days? Import tariffs maybe but difficult to think of any others. And I’ve not noted the Bundys insisting that they’re not going to pay no damn tax on a Toyota.
TM 09.29.16 at 11:48 am
The Bundy argument needs to be clarified. In my recollection, the dispute was about fees he owes for the use of federal land, not propety taxes. The irony is that Bundy is questioning the property rights of the federal government, the very institution from which his own property rights were initially granted.
oldster 09.29.16 at 12:03 pm
“Suppose, for example, that B steals A’s horse. Then C comes along and takes the horse from B. Can C be called a thief? Certainly not, for we cannot call a man a criminal for stealing goods from a thief.”
How bizarre. We’re supposed to deny that C is a thief, while we admit that he is stealing?
Taking things that don’t belong to you in order to treat them as your own. That seems sufficient for stealing, and sufficient for being a thief. The source of the things that don’t belong to you–whether you got them from someone to whom they belong or not–strikes me as irrelevant. Whether they belonged to B or not, they certainly do *not* belong to C. Ergo he is stealing (as Rothbard concedes). Ergo he’s a thief (as Rothbard bizarrely denies).
reason 09.29.16 at 12:15 pm
Olster @4
Yes – I don’t understand at all why John writes:
“So far so good.”
So far this is nuts. Stealing is stealing, whether the goods are stolen or not. As we used to be taught in kindergarten, two wrongs don’t make a right.
reason 09.29.16 at 12:28 pm
But the real problems lie deeper than this. The real problem is that this gets us nowhere because the amount of land required (even for basic subsistence) depends critically on such things as climate, access to water, fertility of the land, what the land is used for, technology available, and what is considered a reasonable income to live on. So there are a whole lot of difficult to measure conditions upon which even a right to settle free land for subsistence is predicated on, and which are time and culture dependent. (So aboriginal claims could be rejected as inefficient by European standards – but the standards used in justifying appropriation no longer hold – so can they still be regarded as relevant.)
But I really don’t think these arguments are coherent enough to really bother with. I think even most Libertarians would concede on this issue. They would still feel they can build a case for their way of looking at the world without it.
Lee A. Arnold 09.29.16 at 12:42 pm
John Quiggin: “inherent relationships”
Do you mean inherent relationships between human beings, or inherent relationships between a human and the property?
TM 09.29.16 at 12:49 pm
“I really don’t think these arguments are coherent enough to really bother with”
Sure. Waste of time department.
Collin Street 09.29.16 at 1:30 pm
The conditions were, claim it, farm it for 5 years, build a house, then it’s yours.
“Yours” meaning “estate in fee simple”, of course.
Matt 09.29.16 at 1:35 pm
Suppose, for example, that B steals A’s horse. Then C comes along and takes the horse from B. Can C be called a thief? Certainly not, for we cannot call a man a criminal for stealing goods from a thief.
Yes, this bit by Rothbard really is wrong. I’m teaching property crimes in my criminal law class right now, so it’s on my mind, but a very standard definition of larceny is “The taking and carrying away of the property of another, with the intent to deprive the possessor of the property permanently.” There’s no need for the one taking the property to think that, or for it to be the case that, the one deprived of the property has good title to it for an act to be theft. I’m not completely sure what this does to the rest of John’s argument, but it does show that something has gone wrong right away with Rothbard. (Not that that’s a surprise!)
GG 09.29.16 at 1:38 pm
There’s an undeniable tension between
“It refers to the granting, by the US state, and subject to a range of conditions, of land previously expropriated from the indigenous inhabitants.”
and
“Your property rights are those that are accepted and enforced by the society to which you belong.”
The people doing the “expropriating” (to use your term) were not a part of the society which granted and enforced the rights to the associated property, so it’s not clear why they’re under any obligation to respect those rights. More generally, if property rights are society-local, and there are no pre-existing arrangements to the contrary between society A and society B, it seems that they can both take each other’s stuff willy-nilly with blameless liberty.
Z 09.29.16 at 2:12 pm
More generally, if property rights are society-local, and there are no pre-existing arrangements to the contrary between society A and society B, it seems that they can both take each other’s stuff willy-nilly with blameless liberty.
This seems wrong not only morally (that part is obvious) but also logically (the conclusion does not follow from the premise). Indeed, our current contemporary conception of justice as embodied in the founding treaties, documents and laws of most contemporary societies, and which is thus society-local by construction, unambiguously ascribes unalienable fundamental rights to all human beings, not only those directly concerned by the document in question (see for instance Article 2 of the Universal Declaration of Human Rights in connection with Article 17 for the topic under discussion).
GG 09.29.16 at 2:41 pm
@Z: All true, but the notion of universal rights is of relatively recent vintage. And you’re still relying on a society-level legal formalism.
My larger point, which I think you’d agree with, is that our intuitions insist that there’s some minimum rights framework that exists in the state of nature. And that, to make claims of “expropriation” plausible, there must be some sort of property rights which are not society-local.
oldster 09.29.16 at 2:58 pm
Matt @ 10:
It’s even weirder than that, right? Because Rothbard has already conceded that the person in question is stealing. However, we cannot call him a thief, or a criminal, despite the fact that he’s stealing.
So Rothbard might *also* concede to you that he is committing larceny, by the standard black letter definition, but still claim that we cannot call him a thief, or a criminal.
It’s just ridiculously wrong–so wrong, we don’t even know what would count as disagreeing with it.
I blame it on JQ’s change of notation.
(not really).
Z 09.29.16 at 3:09 pm
“And you’re still relying on a society-level legal formalism.” I am relying on this formalism because I am following your logic: you took as a premise the fact that rights are society-local and concluded (to paraphrase) that in non society-local situations, everything goes. I am just pointing out that this does not logically follow.
“My larger point, which I think you’d agree with, is that our intuitions insist that there’s some minimum rights framework that exists in the state of nature.”
As for me, I would agree that there is a notion of human dignity which is inherent to the human condition understood biologically and which manifests itself through natural compassion independently of the existence of a developed social structure. However, I would dispute that this fundamental trait of human psyche and behavior translates effortlessly to a framework, to use your term. I would think that a social system is required for that, and one with pretty specific properties at that (social distinctions, literacy…).
“And that, to make claims of “expropriation†plausible, there must be some sort of property rights which are not society-local.”
No, I don’t see that at all. I see no contradiction in society-local systems of rights which nevertheless compel people to treat anyone as if they had these rights. The Universal Declaration of Human Rights is society-local. Nevertheless, if you belong to the relevant local society, you nevertheless have to respect the property of any human being.
TM 09.29.16 at 3:13 pm
“to make claims of “expropriation†plausible, there must be some sort of property rights which are not society-local.”
Our sense (or intuition) of justice says that when white settlers took the resources on which indigenous people relied for their livelihood, that was an injustice. Because we in our legal system are used to think in terms of property rights, it comes easy to us to express that sense of injustice in terms od “expropriation” and “stealing”. It doesn’t follow that without a belief in property rights, we would be unable to conclude that the act was an injustice. In particular it doesn’t follow that if the indegenous people in question didn’t have a notion of property rights, then taking their resources can’t have been unjust. That is total nonsense.
Btw the term “dispossession” might be more neutral since it describes a physical, not a legal act. One can reject property rights and still have possessions, and still believe that taking somebody else’s possessions is wrong.
TM 09.29.16 at 3:25 pm
Btw confounding possession and property is a typical mistake of propertarians. These are fundamentally different concepts eveb if occasionally they coincide.
GG 09.29.16 at 3:27 pm
@Z: ok, how about the Huns? They didn’t believe they were bound by any of the restrictions you discuss. Were they morally blameless in their plunder and rapine? If not, why not?
@TM: I completely agree, and made a similar observation in a previous Locke post. The transgressions against indigenous peoples should not be couched in terms of property rights (and thus we should avolid the use of terms such as “stolen” or “expropriated”), but rather as violations of their autonomy.
Mike Huben 09.29.16 at 3:58 pm
TM @17 is absolutely correct. I think the article would be somewhat better if it kept this distinction clear.
I have an extended discussion of this distinction at What Is Property? I’d welcome comments and criticisms.
Collin Street 09.29.16 at 4:18 pm
@Z: ok, how about the Huns? They didn’t believe they were bound by any of the restrictions you discuss. Were they morally blameless in their plunder and rapine? If not, why not?
People acting in accordance with a [legal or moral] system are [legally or morally] blameless in the terms of that [legal or moral] system.
Obviously we can judge them by our own standards, too.
Sebastian H 09.29.16 at 4:50 pm
“Your property rights are those that are accepted and enforced by the society to which you belong.”
This sentence hints at why I’m always so cautious about the academic power of stipulation. You can of course stipulate in an academic discussion that the term term ‘property rights’ means something like ‘the enforceable property rights granted by the legal structure of a community’ but you’re risking being unclear when you want to talk about ones not currently granted (but should be?), outside the legal structure, or outside of the community. Normal people would want to then modify them to make clear what they mean, but that is going to get hopelessly muddled when you’ve stipulated ‘property rights’ into something else instead of just talking about ‘enforceable property rights’ or ‘local understandings of property rights’ or whatever.
My concerns are realized only one sentence later when you say “The justice or otherwise of a set of [enforceable] property rights can’t be assessed separately from that of the social structure of which it is a part. To the extent that the social structure is just or unjust, a property rights system that effectively supports and reinforces that social structure shares that character.”
This section is less understandable than it should be because of the way you have defined property rights. Sticking enforceable in front of property rights instead of trying to define property rights as the enforceable rules makes it a lot clearer or at least it makes what I think you’re saying a lot clearer (maybe you would choose some other even more precise modifier). The problem from a lay reader perspective if you want to talk about things that you don’t really think of as ‘rights’ in the way that a lay person thinks of as ‘rights’ (I think). If my interpretation is correct, I don’t understand the insistence on calling it a ‘right’. Maybe you want to call it a ‘legal right’ which is a modifier that is pretty well understood to be different from the moral concept of ‘right’.
It clears up a lot of the confusion which is immediately expressed in the comments about Huns, society-level rules, occupancy, and ownership.
One of the key problems with this series is that it isn’t always clear when you are going from society-level rules to general moral norms and back. Do you use ‘justice’ as over-arching universal moral norms to be judged against and ‘rights’ as society-level norms? Maybe I missed an earlier post where you made it clear that was what you were doing? I normally think of ‘rights’ as what people have under universal concepts of ‘justice’ (i.e. We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights…) while legal rights are a set of legally enforceable trappings that are society dependent and which may or may not track with ‘justice’. (i.e. he had the legal right to kick the pregnant woman out of the hotel on the street in the middle of a bitter winter night).
From previous posts it seems like you are saying that property rights are ONLY legal rights.
I wonder if part of the problem in these discussions is that quite a few people around here profess not to believe in society-independent justice concepts, but then flounder when they want to judge things.
bruce wilder 09.29.16 at 4:54 pm
We institute property rights as a means of facilitating negotiations over more productive and less lethal social interaction. The propertarian, as I understand him, leans in the direction of making property ownership a means of authoritarian coercion by the property owner and against collective political action except as an enhancement of property owner rights. The public and sovereign authority of the conqueror looms over private property in a 3+-way political struggle which also includes collective personal claims. What was the question?
Snarki, child of Loki 09.29.16 at 5:53 pm
@bruce wilder: “What was the question?”
The question, from the Rothbardian/Propertarian perspective, is “how can we strongly defend the property rights of the current owners, while dismissing the clear fact that THREE ENTIRE CONTINENTS have been stolen from their original inhabitants?”
(N.America, S. America, Australia).
bruce wilder 09.29.16 at 7:18 pm
conquest needs better P.R., I guess.
JimV 09.29.16 at 8:44 pm
From “True Grit” by Charles Portis:
Matty: why were they chasing you?
Rooster: I robbed a high-interest bank. You can’t steal from a thief.
Matty: No, it’s still wrong.
Rooster: That’s the position they took in New Mexico.
John Quiggin 09.30.16 at 6:25 am
GG @11, and others I think expropriation is the right term here. People had property rights under 0ne system (in this case, that of indigenous societies) and these property rights were taken away (expropriated) when that system was forcibly displaced by a new one (the US state).
As argued in the OP in relation to property in general, expropriation isn’t just or unjust in itself, it depends on the justice of the social change that makes it possible. As you say here, the transgression against indigensou people arise from their loss of autonomy, not to mention capacity to feed themselves. The fact that some indigenous people lost property rights was part of this process, but not the essential injustice
Responding further to this quote, I agree as regards “stolen”, since it implies some non-local notion of property rights. At least as I want to use it, “expropriation” doesn’t. Rather it emphasises the point that any new creation of property rights typically comes at the expense of previously existing property rights that are abolished or curtailed.
A successful slave revolt, for example, would entail a just expropriation of the former slaveholders.
TM 09.30.16 at 7:27 am
“People had property rights under 0ne system (in this case, that of indigenous societies)”
But many of these societies didn’t have a concept resembling our institution of property rights. Many societies didn’t recognize land as a property. That is an empirical observation. Why insist in imposing our legal concepts on these societies?
John Quiggin 09.30.16 at 7:46 am
I’m not saying that other societies have the same property rights system as ours. In particular, the extent to which property is individual rather than collective is a notable feature of capitalism. But all societies regulate relations between people and things, which is pretty much what constitutes property.
In particular, it seems pretty clear to me that indigenous Americans claimed ownership of the land on which they lived and fought, mostly unsuccessfully, to assert those claims against the US state. Similarly, with aboriginal Australians, despite their perception as “nomadic” and claims of “terra nullius”.
TM 09.30.16 at 7:59 am
I think you need to take the anthropological evidence seriously, and widen your horizon to the possibility that Western institutions aren’t the only possible way to organize society.
“But all societies regulate relations between people and things, which is pretty much what constitutes property.”
I think this wording is way too broad. In that definition, a legal system that explicitly denies the existence of property rights would still be a way to “regulate relations between people and things” but it definitely does not constitute property.
Let me ask you directly: do you agree that possession and property are different concepts, and that property is a specific legal concept with definite meaning?
John Quiggin 09.30.16 at 8:24 am
“do you agree that possession and property are different concepts, and that property is a specific legal concept with definite meaning?”
Absolutely! I’ve been hammering precisely this point throughout this discussion
https://crookedtimber.org/2014/07/28/uncle-toms-cabin/
phenomenal cat 09.30.16 at 6:16 pm
“Btw the term “dispossession†might be more neutral since it describes a physical, not a legal act.” TM @16
Yeah, “dispossession” is usually the preferred term used by scholars studying colonial/settler dynamics in history, anthro, geography and some other fields, especially in the N. American context. Property rights, as “we” understand the concept, came to be in Native American tribal communities through treaty negotiations with the federal government.
“But all societies regulate relations between people and things, which is pretty much what constitutes property.
In particular, it seems pretty clear to me that indigenous Americans claimed ownership of the land on which they lived and fought, mostly unsuccessfully, to assert those claims against the US state.” JQ @28
I don’t know. This wanders into a very thorny epistemological thicket and I would second TM in saying that the plethora of anthropological data has to be taken into account. You would be surprised, speaking of just the N. American historical context, at how little actual social “regulation” between people and “things” was operable and enforceable among many tribal communities. Property in a narrow, empirical sense (horses, for example, but also certain “powers” or relations with nonhuman forces) was certainly recognized. However, property construed as thing (land, horses, objects) was by no means understood to be regulated by a set of abstract rules which theoretically applied equally to all. The concept “inalienable” (as applied to physical things), for example, would have had no place in many N. American tribal societies historically.
Finally, the indigenous American claim to ownership was and is an articulation that is possible only after long historical interchange. That is, Native American claims to ownership are attempts to play the game by the rules that have been imposed upon them. The categories of “Indian territory” and “border lands” in historical N. America constituted a real state of affairs, however briefly. To be in Lakota or Cheyenne “territory” meant that Lakota or Cheyenne were likely to be dominant and that they “claimed” the area, but that did not mean other groups did not occupy or seek to utilize the resources available in the area. Lakota or Cheyenne did not “own” the area–they claimed it perhaps, often by simply and empirically occupying it, but this was always subject to challenge from other groups in a variety of ways. Ownership as presently taken for granted was not an operative concept.
More to the point of the OP, these “territories” were deemed so b/c they lacked the both the concrete and abstract architecture that defined the State and private ownership. An Army fort here and there, a few trading posts, a network of already existing trails, and later perhaps the railroad, indicated the encroachment of myriad State apparatuses that define, institute, and regulate “property” which had not yet fully arrived.
Ragweed 09.30.16 at 7:02 pm
“In particular, it seems pretty clear to me that indigenous Americans claimed ownership of the land on which they lived and fought, mostly unsuccessfully, to assert those claims against the US state.”
I don’t want to completely disagree with this, but I think it is important to not that current Native/First Nations struggles with the colonial authorities are largely couched in terms of tribal or national sovereignty, not ownership. While people often talk of “stolen” land, there is also the widespread use of “un-ceded”.
In many ways John is correct that it is a dispute over collective ownership vs individual. That was certainly one of the primary issues with the Round Dance Revolution / Idle No More in Canada, where the Harper government was trying to convert tribal lands from tribal ownership to individual fee-simple ownership. Also, it was one of the key points of conflict in the US since the passage of the Dawes Act in 1868. But it is usually conceived of as an issue of sovereignty and treaty rights rather than ownership.
Phenomenal Cat: I would agree, for the most part, but I think that it is also dangerous to universalize the relationship between the plains tribes and the land to all Native people in the Americas. Prairies in Puget Sound definitely belonged to specific Coast Salish families who travelled every spring to collect Camas bulbs and tend the fields. Pueblo cultures definitely maintained some sense of clan/kinship based ownership of houses and fields. The Makah had a complex system of family ownership for fishing grounds – ownership the ocean, essentially. There were as many forms of relationship between Native people and the land as there were cultures.
Ragweed 09.30.16 at 7:05 pm
oops – Dawes act of 1886, not 1868.
I think the big problem with John’s conception of this as differing property rights is that much of what we are talking about is about agreements over the use of the commons rather than property, and couching common resources in terms of property runs into obvious problems.
phenomenal cat 09.30.16 at 8:15 pm
Yeah, fair enough Ragweed. Your points are well taken and I should have made it clear I was referring to Plains societies as particular examples–which are more well-known and thus provide a common point of reference.
Much less well-known today, for example, were southern indigenous communities that were intensely hierarchical with highly structured and stratified social relations that appeared more similar to the mezo-american empires further south than anything else–or were perhaps later remnants of the extensive Cahokia culture that was gone before Europeans arrived…
Yet, even with the examples of Northwest and Southwest communities that you cite, the Euro-American rationale and history that defines legal concepts like “ownership” (much less “private property”) does not map well onto these indigenous regimes (I’m not saying you claimed that, btw). My reference to treaty negotiations and your more explicit notation of sovereignty highlights to disjuncture here that JQ might want to contend with a little more. The frame of sovereignty and treaty rights indicates how potentially different the norms that “regulate” of people and things were/are between N. American indigenes and Euro-Americans.
“I think the big problem with John’s conception of this as differing property rights is that much of what we are talking about is about agreements over the use of the commons rather than property, and couching common resources in terms of property runs into obvious problems.”
Yes. It would be useful if someone–you, JQ?–could expand on this.
phenomenal cat 09.30.16 at 8:18 pm
“highlights *the* disjuncture here”; not *to*
Bruce Webb 10.01.16 at 4:16 am
“Suppose, for example, that B steals A’s horse. Then C comes along and takes the horse from B. Can C be called a thief? Certainly not, for we cannot call a man a criminal for stealing goods from a thief. On the contrary, C is performing a virtuous act of confiscation, for he is depriving thief A of the fruits of his crime of aggression, and he is at least returning the horse to the innocent “private†sector and out of the “criminal†sector.”
Sorry for not reading through the thread, perhaps someone else has covered this, but this is a good example of the dangers of allowing Austrians (actual or intellectual) to opine on Anglo-American law.
Under English Common Law C is a thief. And if caught red-handed will be hanged. Because Common Law protects possession against all except a pursued and proved claim of right. Which claim is solely up to A against B and requires resort to a legal procedure much slower and much more drawn out than claims of possession that can be pursued in the King’s Court. Pretty much every positive assertion of law by the King from Henry II’s time on rested on some extension of the claim of the King to prohibit and redress seizure of property absent a claim of right.
Rothbard’s claim might be logical but it has fuck all to do with the hundreds of year of jurisprudence behind 18th and 19th century American property law.
John Quiggin 10.01.16 at 5:15 am
“I think the big problem with John’s conception of this as differing property rights is that much of what we are talking about is about agreements over the use of the commons rather than property, and couching common resources in terms of property runs into obvious problems.â€
There’s a vast literature on common property systems, to which I’ve contributed in a small way and for which Elinor Ostrom got the Nobel Memorial prize a while back. The correct term for resources over which there are no property rights, common or private is “open access”.
I think it’s safe to say that land is always and everywhere the subject of property rights and rules (and sometimes of competing systems of rights). The establishment of this fact in relation to traditional indigenous ownership (native title) has been one of the big issues in Australian politics in recent years.
Just to restate, all of these property rights are socially constructed. That means the same is true of expropriation. If a new state does not recognise previously existing property rights, the former holders have been expropriated relative to the old system but not relative to the new one.
Ragweed 10.01.16 at 6:29 am
“The establishment of this fact in relation to traditional indigenous ownership (native title) has been one of the big issues in Australian politics in recent years.”
I think that is a major difference between US an Australian politics around indigenous people – in the US it mostly revolves around sovereignty, treaty rights, and nation-to-nation relationships between Native tribes and national and state governments. In part this is because the legacy of the Dawes act has left legal ownership of tribal lands highly checker-boarded (nearly every tribe has land owned by non-tribal member within its boundaries), so having sovereignty over tribal lands, regardless of who might own them, is more important. Also there is a substantial body of case law around treaty-protected use of resources, which is the essence of the Boldt Decision – which is about the right to fish and manage fisheries that is established by the Point Elliott and other treaties.
To be clear, I am not saying it is wrong to describe any relationship between people and things to be part of a socially constructed property relationship – so long as the full range of social constructed relationships between people and things are encompassed. But I worry that this is imposing too much of an economists/or european perspective. If we view every relationship between people and things as a property right, then it may carry implicit bias that it should then be an exchangeable property right. And yet for many indigenous cultures, there are things that are not exchangeable. In Tlingit/Haida cultures, it is forbidden to sing a song or tell a story that belongs to a particular clan, and to do so carries the risk of significant consequences (even today – last week my facebook feed was graced with a diatribe against one of our Seattle urban Tlingit activists, in part for inappropriately using a clan’s traditional tattoo symbols).
Now you might say that this represents a socially constructed intellectual property relationship, and that part of that property relationship includes non-transferable collective clan ownership of certain symbolic goods. And it wouldn’t necessarily be wrong, but I am not sure it is right either, and I am not sure that it doesn’t lead us astray of understanding the actual relationships.
Now in saying that I do not disagree with your primary argument – that property rights are embedded in and determined by social relationships, and not some sort of unique and essential right that supercedes all others, (which among other things is about imposing one particular European cultural value as universal). I am saying that I think that argument might not go far enough.
John Quiggin 10.01.16 at 7:19 am
Agreed. In fact, this is the kind of sleight of hand that is at the bottom of propertarian arguments going from self-ownership (obviously inalienable) to property over things (assumed to be tradeable).
Peter T 10.01.16 at 1:13 pm
Dunno about the Huns, but the Mongols had a definite sense of being right in demanding submission and, with it, transfer of property. As they explained to the Pope, Heaven had given them dominion over the earth, so resistance to their demands was morally wrong.
js. 10.01.16 at 5:36 pm
This is an excellent thread. Thanks to (almost) all involved.
phenomenal cat 10.01.16 at 8:31 pm
“Now you might say that this represents a socially constructed intellectual property relationship, and that part of that property relationship includes non-transferable collective clan ownership of certain symbolic goods. And it wouldn’t necessarily be wrong, but I am not sure it is right either, and I am not sure that it doesn’t lead us astray of understanding the actual relationships.
Now in saying that I do not disagree with your primary argument – that property rights are embedded in and determined by social relationships, and not some sort of unique and essential right that supercedes all others, (which among other things is about imposing one particular European cultural value as universal). I am saying that I think that argument might not go far enough.” Ragweed @38
Yeah, this is good Ragweed and what I was trying to get at, but I couldn’t articulate it yesterday.
“Agreed. In fact, this is the kind of sleight of hand that is at the bottom of propertarian arguments going from self-ownership (obviously inalienable) to property over things (assumed to be tradeable).” JQ
And it is not just a propertarian “sleight of hand”, is it? In some sense, the operation whereby an object, thing, or even an ordered relationship of some sort, can be abstracted and rendered exchangeable according to a wholly different register of value is the *magic* of economic rationality generally. I guess this could just be construed as Polanyi (or even Marx) 101, but the basic double-movement that can divest or empty a given something of its prior significance, order, or value so that it is universally transferable and able to concentrate/hoard economic value could profitably be coded as magic.
I realize now this is why propertarians have sought to imbue property with a kind of metaphysical grounding, despite the absurdity of such efforts. It is an unspoken, even unconscious, anxiety masquerading as philosophy. Nothing is ever really safe or secure from the magical operation they promote except, according to them, the object that defines the operation. Property is truth. Everything else is contingent.
oldster 10.02.16 at 2:58 pm
Whereas,
1) CT doesn’t do open threads, but
2) this thread is more or less about US-style libertarians i.e. Randroids, and
3) Trump has just been revealed, once again, to be a greater moocher and looter than any of Rands villains could ever be;
may I ask the CT board, and especially Corey, to explore the origins of the “moochers and looters” trope?
I have an hypothesis that Rand was intentionally mis-applying it to labor, after she had first heard it (or slurs like it) used against capital. It was originally another accusation of parasitism, vampirism, etc., claiming that the wealthy were parasites on the labours of the proletariat. She, with the cunning of the playground, responded by saying, “uh-uh! Owners aren’t the moochers and looters! Workers are! Ha ha!”
Thus my curiosity: was there, in Ayn’s youth, a Bolshevik (vel sim.) piece of slander for capitalists that could be translated as “moochers and looters”? Not “capitalist roaders,” but a phrase of that sort?
Back to the present: destroying billions in wealth through bankruptcies that gutted whole cities, cheating his creditors while siphoning off the Federal treasury for years–has there ever been a more complete looter and moocher than Trump? Only among his friends in the Russian kleptocracy, I think. No wonder he looks up to them so much.
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