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Monday, February 25, 2013

Boundary: What Can Be Owned?

“That dog is mine,” said those poor children; “that place in the sun is mine.”

—Blaise Pascal1

Because “property” has meaning only within a social context, how it is to be owned and controlled defines the nature of a given society. An analysis of the concept must begin by identifying the functional elements of property, and inquiring into their personal and social implications. These elements—which will be explored at length in this and the following two chapters—are those of boundary, claim, and control. While these concepts will be discussed separately, it must be emphasized that they are as interconnected to an understanding of property as the heart, lungs, and circulatory system are to the functioning of the body. Our inquiry into each of these three elements will occasionally cross over from one to the other.
A discussion of the nature of property must begin by identifying the interest—the entity—that is subject to being owned. This is the boundary element, the “what” that can be owned, the definition of the property itself. We are familiar with “boundaries” as they relate to the ownership of real property—e.g., iron pipes driven into the ground at each corner of the property, or fence-lines encircling a piece of land—but we are less familiar with the conceptual nature of boundaries, and of the important role they play in defining the range of our decision making. Boundaries are the means by which liberty and peaceful order become integrated in society. As the saying “good fences make good neighbors” reminds us, it is the failure to identify and respect boundaries that is at the heart of our social conflicts.
The boundary element circumscribes not just the physical dimensions of an item of property but, more importantly, the identification of the extent of decision-making authority over such an interest. The boundary line that separates your land from mine, for instance, has less to do with describing the character of the land itself than with defining the limits of our respective decision-making. All property—even so-called “intangible” interests—has dimensions to it, even if their configurations are not visible. This means that all property must consist of an identifiable interest that can be subjected to the control, the will of one we call an owner.
Property boundaries are what make peaceful and productive society possible. They are a way of signifying to one another the range of our respective interests; telling us what it is over which each of us may “properly” exercise authority. In much the same way that the boundaries of a tennis court delineate the area within which the game is to be played —with each player staying on his side of the court and without trespasses from the fans—property boundaries describe the field within which owners may act without interference, or the necessity of securing permission from others.
It is important to emphasize that boundaries are not limitations on the decision-making authority of an owner; they only define what it is over which one has authority. Within the bounds of his or her property, the owner is an unfettered decision-maker. Let us assume that I own a brick, and I assert the authority to do whatever I want with what is mine. Would that proposition entitle me to throw my brick through your picture window without your permission? The answer is clearly “no.” I may exercise complete decision-making over what is mine, but not over what is yours. I may throw my brick through my picture window, or hit myself over the head with it, for in doing so I am exercising control only over what I own. To say that I may do as I will with what I own necessarily precludes me from doing as I will with what you own. Our respective property boundaries define—and thus limit—the range within which each of us may be unrestrained actors. As an owner, my decision making properly ends where my property boundaries end. Should I go beyond these limitations, I become a trespasser, just as you will if you forcibly prevent me from acting upon what is mine.
The following illustration may prove helpful in understanding this meaning of “boundaries.” Let us imagine that I have bought a new car, financing the purchase with a loan from a bank that insists upon a chattel mortgage to secure my obligation to repay the loan. Both the bank and I have property interests in the car. The boundaries of the bank’s interest preclude me from damaging or destroying the car, and may even obligate me, as a condition in our contract, to keep the car insured. Its interest does not, however, extend to being able to drive the car, or controlling where I might drive it, or who I might carry as passengers: these are property interests within my boundaries. Once I have repaid the loan, the bank’s interest evaporates, and my boundaries extend to the full decision-making authority over the car. With our respective boundaries clearly defined, there is no way that our property interests can be in conflict, unless one of us chooses to transgress the other’s interests.
This self-limiting nature of property boundaries is a crucial concept to grasp if one is to understand how privately-owned property is an essential system for harmonizing individual liberty and societal peace. “Life” requires both cooperation with and separation from other living beings, particularly members of our own species. A system of property is the social expression of this fact of nature—just as it is with other species— affording a principle for informally allocating the spatial and energy consumption needs of all life-sustaining activity. We are so accustomed to living under political systems that introduce division and conflict into our world by separating our lives and other property interests from our individual control, that we accept divisive definitions of property. Because the state trespasses upon us by presuming the authority to control our lives, we come to believe that such transgressions are an integral part of property ownership. We have become so conditioned to the practice of the state defining the legal scope of our decision making, that most of us cannot comprehend the idea of property as a self-defining system of social order. We conflate what is legal with what is rightful, and become insensitive to trespasses upon our property interests, and disrespectful of the boundaries of others. We become more concerned with what the law demands of us than with what we, or our neighbors, desire to do with what is ours.
It is essential to an understanding of the boundary concept that we be clear as to its mutually exclusive implications. Because we tend to confuse our ownership interests in property with the items of property themselves, we suppose that property interests can be in conflict. Let us imagine that you own a parcel of real estate, and you agree to sell me the mineral rights to this land. After the transaction has been completed, our respective spatial boundaries would look like this:

Figure 1.
The boundaries of what you own would consist of everything within the parcel (i.e., surface, subsurface, and air rights) except for the shaded portion i.e., the mineral interests) that I now own. Because a contract is only an agreement to transfer ownership claims, the terms of our agreement redefine the boundaries of what each of us had owned previously. My mineral rights are not in conflict with, nor a restriction upon your property interests. The boundaries of what you own have been redefined, but your ownership control in what remains is as complete as it was before.
But what happens if my efforts to remove my minerals cause your house to subside: would that amount to a trespass or other interference with your property interests, and would this mean that my ownership interests (i.e., the right to control my mineral rights) are now in conflict with your interest in not having your property subside? Because contracts define the boundaries of the ownership interests being transferred, the answer to this question will depend upon what we had agreed to in our contract for the sale of the mineral rights. If I agreed to provide “subjacent support” in order to prevent subsidence, then our mutual boundaries would be defined to reflect this. My boundaries would again, be reflected by the shaded area, while yours would be enlarged, by our contract, to include the supports. Should I now attempt to remove these reinforcements, I would be trespassing upon your property interests, not by causing your house to subside, but by interfering with the support interest you had retained.

Figure 2.
The reverse of this hypothetical is subject to the same analysis. If, by contract, I have the right to remove all the minerals without providing subjacent support, the boundaries of your property interests will be defined in a more limited way, while my interests would now include the right to cause subsidence that was incidental to my mining operations. Since, presumably, the purchase price for these mineral rights would be higher in the latter situation than it would be were we to agree to provide for subjacent support, we can infer that the price differential reflects our mutual understanding that I am purchasing a larger property interest (with more extensive boundaries) when I do not have to provide support, and a smaller interest when I do have to provide such support. As long as each of us abides by our agreement, there is no way in which our respective property interests—as measured by clearly defined spatial boundaries—can come into conflict. While a conflict could arise from our failure to specify such boundaries with sufficient clarity, it is the imprecision of our boundaries, not the nature of the property itself, that generates the conflict. Conflict arises when the property interests of one person are trespassed by another. In this sense, a trespass is but the imposition of costs on others. If, in the face of an agreement that clearly accords me the right to remove my minerals without providing you support, you are able to get the courts to enjoin my actions, you would derive, at my expense, a property interest for which you had not negotiated. This is just one of the many ways in which the state violates property interests.2 Over the course of time, conditions may arise that neither of us had anticipated, leading us to modify the terms (the boundaries) of our contract. But in a system that respects individual autonomy and the inviolability of property interests, such an alteration—a novation—will arise, as did the initial agreement, from the parties themselves.
This hypothetical example is not simply a theoretical one. That a number of discrete property interests—each owned by a different person—may exist within one parcel of land, without conflict, is found in early California mining law. The same parcel of ground might be subject to one claim for placer mining (i.e., to extract minerals from sand or gravel by a washing process), to another claim for quartz-ledge mining, to yet another for fluming purposes (i.e., to divert water by means of an inclined channel), and to another claim for the diversion of spring or stream water on the parcel.3 Closer to home, urban properties usually exhibit multiple levels of ownership interests (e.g., a leasehold, mineral rights, mortgage interest, easements, and a landlord’s fee simple interest) within the same parcel of land, wherein different owners are able to conduct themselves without conflict. The language of the agreements creating these interests, along with public recordation that would give subsequent parties notice of such claims, would define the respective boundaries of each property interest.
Such tendencies for multiple levels of ownership in the same territory are not confined to humans, but are found in the division of boundaries among various species. It has been observed, for instance, that as many as five different species of warblers will feed on the same kind of worm in the same spruce tree, but with each species occupying different levels of the same tree. Likewise, such estuary sea life as oysters, mussels, gar pikes, and snappers—each with a different level of tolerance for the saltiness of sea water—will establish territorial boundaries based upon the varying degrees of salinity of the water.4
There is something about the functional nature of boundaries that extends far beyond their relevance to property alone. Because of the dualistic nature of our thinking, boundaries provide the means by which our minds separate and distinguish one concept or category from another. Through considerable effort or intuitive insight, we are often able to transcend the divisions created by our structured thinking, and to see the universe more holistically. Because such an awareness may help us dissolve the lines of separation that can keep us in deadly and destructive conflict with one another—a topic to which we shall return—I believe it is necessary to devote a broader inquiry into the role boundaries play in our lives, an examination that will then bring us back to their significance in matters involving property.
There is a symmetry at work in all of this, the recognition of which may help us integrate what the dualistic nature of our minds insists upon seeing as isolated, or even contradictory, phenomena. Light and darkness, and space and matter define each other’s boundaries in mutually exclusive ways. The movement of my fingers, for instance, alters the configuration of the space that surrounds them, redefining the relationship of each to the other. Any item of property I desire to claim derives its identity from the boundaries that surround it. So, too, the boundaries of your interests are necessary to a definition of what is mine (i.e., what is yours to control delimits what is mine, and vice-versa).
Our daily lives are unavoidably tied up with boundary questions. The work that we do (“that’s my job”), the homes in which we live, the computer websites through which we communicate with others, and our very sense of “self” are carefully delineated in terms of boundaries. Even the remarkable orderliness of freeway driving is dependent upon adherence to boundaries. Tens of thousands of motorists drive at high speeds, separated by a scant few feet of space, each endeavoring to stay in “his” or “her” lane, aware of the immediate life-and-death consequences of a mistake in judgment that might precipitate a boundary trespass we know as an “accident.” When we are aware of how our politically-generated boundary trespasses have their own destructive, anti-life implications, we might become as cautious in what we advocate as governmental policies as we are in the behavior of our fellow motorists.
Boundaries are dynamic information systems, whose qualities relate not just to defining property interests, but also to many areas of life. Learning, for example, is a process by which we cross the boundary that separates the known from the unknown. Learning consists of transcending, or even dismantling, the boundary lines by which we have categorized our prior experiences. An openness to the unfamiliar is essential to learning, just as the willingness to cross the boundaries separating the known and the structured from the unknown and the unstructured, is the mark of a creative person. On the other hand, we have organized our learning through neatly arranged concepts, categories, academic disciplines, belief systems, and other structures grounded in definitional boundaries. Those who have attached themselves to such formalized thinking—a trait one sees in ideologies, religions, and academia—are ever vigilant in seeking to preserve the inviolability of their boundaries. Boundaries play a very important role within academic disciplines. What university campus does not channel learning into rigidly-defined “disciplines,” and discourage speculative inquiries that have no recognized boundaries? What university departments do not remain on the alert for poachers from other disciplines, a phenomenon that has been given the territorial name of “turf wars?”
Economic analysis and the study of genetics are each concerned with changes that occur along the margin of events. The economist is interested in knowing how one additional unit of supply of a commodity will affect its price, while the geneticist—whose motto is “cherish your mutations”—learns much about biological processes by studying an organism whose structure deviates from the norm. Words and other intellectual concepts are distinguished by subtle nuances whose exclusive boundaries provide meaning, or “definition.” When we want to know the details of anything, be it a basic element, a chair, a particular fruit or vegetable, we speak of its “properties,” and do so in terms of boundary descriptions that differentiate the subject matter from all others. It is also noteworthy that, when Korzybski wrote of the distinction between abstractions and the reality they are intended to represent, he employed the property metaphor of “territory.” His observation reminds us to not confuse the boundaries separating the world from our thoughts about the world.
The universe is whole and interrelated, but in order to understand it, our mind compares and contrasts our experiences, looking for identifiable patterns. With the help of analogies and distinctions, we divide the world into discrete categories, each with its identifiable boundaries, and then deceive ourselves that such divisions represent reality. It is when we are playing around at the boundaries that separate these concepts—as when exploring contradictions—that which we begin to get intuitive glimpses of the underlying wholeness of the world. This is what makes boundaries such a magical, creative place, if only we can muster the courage to move into the realm of the unknown.
We can think of this territory beyond the known as a frontier, a realm within which uncertainty, autonomy, and spontaneity represent the norm, and where the turbulence of change is the continuing dynamic. It is at the boundary separating the frontier from the more established regions, the unstructured from the structured environments, that liberty and creativity often flourish. We are seeing such dynamics in the rapidly transforming world of computerized technology and the Internet. But to enter a frontier, be it of physical, intellectual, or psychological dimensions, we must be prepared to give up our attachments to whatever defined our interests in the structured world we are leaving behind.

Boundaries of Order: Private Property as a Social System

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