From the perspective of a legal positivist, a recognizable claim is defined by whatever criteria the formal political/legal system recognizes and defends through state enforcement (e.g., judicial action). This approach constitutes what most of us regard as our “rights” in any matter (i.e., whatever the government considers our rights to be). At any given point in time, the existing political system has determined who would and who would not be entitled to assert a legally-recognizable claim to the ownership of a property interest. Slaves were denied their claims of self-ownership and were, in fact, determined by the formal legal system to be the property of their masters. The American Indian tribes’ claims to the ownership of their lands were legally invalid because the political/legal system did not choose to recognize them. Likewise, there was a time when males could rightfully claim ownership of property, but married women could not. Upon her marriage, a woman’s property claim automatically transferred, as a matter of law, to her husband, yet another example of Maine’s “status” defined rights. Other would-be property claimants, e.g., minors, persons lacking mental capacity, et. al., continue to be denied legal ownership rights because of the refusal of the state’s legal structure to recognize them. There has been a continuing political jockeying for a redefinition of these categories (e.g., the abortion issue is based on the same question as the slavery debate: is the fetus a self-owning person, or the property of the mother?), with the legal outcome turning on the age-old question: who gets to make decisions about what?
The principal shortcoming of a formal political definition of ownership interests lies in the coercive, conflict-ridden nature of all political systems. Contrary to our high school civics class understanding, political processes do not consist of principled or rational inquiries into the kinds of profound philosophical questions that stirred the minds of Socrates, Aristotle, Thomas Aquinas, John Locke, or John Stuart Mill. As modern experiences with violent coups, political assassinations, genocides, bloody repressions of dissent, and massive levels of warfare attest, having recourse to politics as a means of determining the “rights” of parties, is always a resort to legalized violence. Because the concept of a legal “right” derives from notions of formal state power, it necessarily implies a coercive authority to define such standards. Furthermore, the state’s power to confer or deny ownership interests to anyone is always at the expense of somebody else, a somebody whose talents for mobilizing the forces of realpolitik are less developed than those of their more successful rivals. Since the state generates no property interests on its own, but can only despoil the property interests of others, and since the state has no power to confer a capacity for ownership upon any of us that was not already present within our self-seeking natures, the tendencies for political institutions to produce anything other than social conflict should be evident.
As an alternative to the legal positivist position, a number of political thinkers have advanced the idea that there are certain philosophical principles—usually spoken of in terms of “natural law”—that transcend the formal authority of the state and condition an individual’s legal duty of obedience to legal mandates. John Locke made a respectable effort to formulate such a natural law explanation for the origin of individual rights to property. Beginning with the assumption that each person has a property interest in his or her self, Locke employed the “labor theory” of ownership to extend one’s ownership of self to include the right to acquire ownership of various resources in nature. In his view, a claim of ownership arose when a person “mixed his labour” with some previously unowned resource such as land and, in so doing, incorporated his will into the property.10 The labor theory of ownership is certainly compatible with the idea that private property is necessitated by the entropic nature of life. Since we can overcome entropy only by consuming external sources of energy, our existence depends upon the exertion of our will upon the material world.
While the natural law approach has a certain emotional and logical appeal to it—assuming one accepts its premises—it suffers from the major shortcoming of all normative thinking: how does one discover the content of these principles? How do we distinguish one person’s identification of a transcendent “moral principle” from another person’s expression of a private prejudice? Are the natural rights theorists doing anything more than projecting their subjective preferences onto the universe and then characterizing them as “eternal principles?” Do moralistic debates amount to anything more than sophisticated shouting matches for the rationalization of a speaker’s biases? How do we verify that we have a natural law principle before us? Is it possible to do so without translating such ideas through our own prior experiences and thoughts? How can normative propositions be made subject to empirical proof? Furthermore, is not the insistence upon justifying liberty as an imperative emanating from “God” or “nature,” simply another example of our traditional, pyramidal-based thinking that assumes our affairs to be governed by higher authorities; that our claims to immunity from coercion must be conferred by external forces?
The “natural law” theory also suffers from a failure to identify causal relationships associated with their violation. If someone speaks to me of Newton’s “second law of motion,” I can set up an experiment to test its validity. While one may justifiably quarrel over the propriety of speaking of regularities in nature as “laws,” one can at least identify a relatively clear cause-andeffect connection. But if I argue that I have a “natural law” right to my property, and my neighbors proceed to violate my interests, what will occur? Will the forces of nature suddenly turn upon them —perhaps by suspending the principle of gravitation —causing them to no longer be able to function in the world? And if the inviolability of my property is mandated by the laws of nature, how could my neighbors succeed in despoiling me in the first place? If their actions violated “natural law” they could not, by definition, carry out their act. The “natural law” advocates have another difficulty to overcome: given that most of the land on Earth has, throughout recent human history, been under a claim of authority from some political power—and that stateless societies today are the great exception rather than the rule—the idea that state systems are “unnatural” is rather difficult to defend. How, after all, can anything that happens within nature be considered to be in violation of nature’s laws?
When it becomes evident that the so-called natural law or moral principles being advocated by someone just happen to coincide with the speaker’s preferences, the self-serving nature of such rationalizing becomes even clearer. I say this as one who continues to be attracted to much of the thinking of Locke and other “natural law” theorists. It is not that their understanding of the importance of private property is invalid: quite the contrary. Human society would function much more peacefully were we to live in accordance with such principles. But having said that only confirms the subjective nature of all belief systems.
As I suggested earlier, there is little doubt in my mind that the world has an objective existence, but I can only surmise that subjectively, as an opinion derived from my experiences. My views regarding the desirability of certain social attitudes and practices are no less the product of my experiences and other subjective influence than are yours, or those of Thomas Hobbes, John Locke, or Karl Marx. That I embrace my opinions with great intensity is no justification for my regarding them as any more than deeply-held sentiments. Any attempt to elevate my opinions to the level of eternal moral truths would be but to engage in self-delusion, no matter how valid I may consider my views to be. Such efforts amount to intellectual devices for deceiving ourselves that our opinions have a ring of certainty to them. They also serve to manipulate the thinking of others in order to get them to behave as we want them to behave. At the same time, in believing that externally-derived ideas and moral philosophies are essential to living as a free individual, and that one’s claim to be free from the trespasses of others must be founded upon something greater than the expression of one’s will, we reinforce the sentiment that we are incomplete within ourselves; that we lack integrated wholeness. To delude ourselves that our preferences for liberty depend upon forces beyond our will is to acknowledge our fundamental unworthiness as autonomous individuals.
One of the principal debates arising out of the “legal” versus “philosophical” explanations for the origin of property rights has been whether such interests preceded or followed the establishment of governments. John Locke embraced the former proposition, while John Stuart Mill and Jeremy Bentham espoused the latter point of view. Bentham was rather succinct in stating that, “property is entirely the creature of law.”11 He then reiterated one of the central articles of faith of every legal positivist: “Before the laws, there was no property: take away the laws, all property ceases.”12 Again, we see an expression of the pyramidal model of social order: the conditions necessary for the very existence of life had to be conferred by the state! That human beings survived for hundreds of thousands of years before settling down into the agricultural communities that preceded the development of any political institutions, and that property must have existed before those institutions would have had anything to tax and regulate, should be apparent. Furthermore, because life itself is dependent upon the existence of property (i.e., space to occupy and resources to consume, to the exclusion of everyone else), Bentham’s absurd proposition presumes that legal systems preexisted life itself! Thomas Hodgskin has offered one of the more poetic critiques of the view that property rights were created by governments:
we must believe that men had naturally no right to pick up cockles on the beach, or gather berries from the hedge—no right to cultivate the earth, to invent and make comfortable clothing, to use instruments to provide more easily for their enjoyments—no right to improve and adorn their habitations—nay, no right to have habitations—no right to buy or sell, or move from place to place—till the benevolent and wise law-giver conferred all these rights on them. If the principle be true in one case it must be universally true; and, according to it, parents had no right to the love and respect of their offspring, and infants no right to draw nourishment from the breasts of their mothers, until the legislator— foreseeing, fore calculating the immense advantages to the human race of establishing the long list of rights and duties which grow out of our affections, and constitute our happiness—had established them by his decree.13
One recalls from the previous chapter the works of Ardrey, Lorenz, and others regarding the sense of territoriality exhibited by other animal and plant species who, as best we can tell, had no state apparatus to confer such “rights!” These interests—reflective of the purely physical needs for property that all living things require for their survival—express the biological rationale for ownership. So widespread is the role of territoriality throughout nature, that one is tempted to characterize it as a “natural law,” with all the subjective baggage that such a term entails.
As our social systems continue their divergent transformations, the question arises as to how private claims to property might be established. If state systems were no longer in a position to confer or acknowledge ownership interests, might another means be available for protecting such rights? How, in other words, might our interests be protected in a society operating upon what might be thought of as a holographic model of organization?
The variable and unpredictable nature of a world of six billion people makes it absurd for anyone to propose utopian blueprints for humanity. I suspect that thousands of alternatives may be experimented with by different groups of people. Still, a suggestion can be made as to one way in which some might choose to respond in a decentralized world. In what I would call an informal social means of recognizing claims to property, a marketplace approach could be employed. In much the same way that any economic transaction occurs, we and our neighbors express our respective expectations of one another regarding our claims to property. Through our neighbors’ responses to our behavior and stated intentions, we informally seek their respect for our claims.
Upon what basis might such claims be asserted? As with other social and economic transactions, might we not be expected to appeal to the values, preferences, beliefs, and other interests of our neighbors? For listeners of a pragmatic disposition, appeal might be had to utilitarian arguments that respect for our claims would benefit not only ourselves but also the rest of the community. For those with a legal perspective, resort might be had to common law property principles and case law. If the audience were religiously or philosophically attuned, we might insist upon our “God-given” or “natural law” right to our claims. Just as the marketplace is comprised of men and women bargaining for the buying and selling of claims to goods and services, members of a community can confer recognition for one another’s respective claims to be exclusive decision-makers over some resource. The community’s recognition of such a claim could be said to confer upon the claimant a “right” to the property, meaning a claim to immunity from being trespassed. The process could work in much the same way that “consensus” techniques work in such places as were discussed in chapter one. Most of us might be inclined to do so in the hope that, should some other party forcibly intrude upon our interests, our neighbors would be inclined to come to our defense.
The following hypothetical may help illustrate the social, or informal transactional approach to property claims. Suppose that twenty of us are marooned on a previously deserted island, and that I manage to locate—and lay claim to —the only source of fresh water on the island. Perhaps I erect a fence around the area I am claiming, in the expectation that those with a Lockean perspective might regard this act as a sufficient mixing of my labor with the land. Having asserted my claim, I now await your decisions as to whether to respect it or not. In an effort to persuade you to do so, I may try to rationalize my claim by appealing to what I perceive to be your religious or philosophical dispositions, or only the felt need for territory that motivates other species. Whatever argument I employ has no inherent substance to it, being important only as a sales argument designed to help convince the rest of you to acknowledge and respect my claim. Will you be likely to do so?
If you are inclined toward Locke’s view, you might insist that I do more than put up a sign; that I should extend my labor to improving or preserving the water source itself. Socialists among us might deny the validity of my claim en toto, on the grounds that individual claims to productive lands ought to be denied in favor of collective ownership. An environmentalist might object to my claim, believing that my control of the fresh water supply might disturb wildlife presently living on the island. There may be a sizeable number of persons who don’t care, one way or the other, whether the water should be privately or collectively owned, as long as they are assured of an adequate supply.
Whether my claim will be respected or not may depend not upon the persuasiveness of my abstract argument, but on how I behave toward the rest of you regarding the water. If I deal with the water as a valuable resource, for whose use I would be willing to make contractual exchanges—such as for food or shelter—and the rest of you perceive that I am developing and caring for this resource in a way that benefits our community,14 my claim might well be respected by the rest of you. Should one or more of you try to forcibly dislodge me from my claim to exclusive control, the rest of you might be counted upon to help defend my interests against such an attack. Furthermore, when my claim is recognized by the rest of you—as something to which you have contributed—there is harmony generated between myself and my neighbors: the claim has not created division within the community. To the contrary, the rest of you are more likely to feel that you have a vested interest in supporting my claim because your willingness to respect it has given it strength.
On the other hand, should I deny access to the water to everyone—either by an outright prohibition of its use, or by demanding an exceptionally high price for its consumption—the rest of you would likely not respect my claim, particularly since your lives depended upon its use. I would then experience conflict with the rest of you—no matter how strongly I believe in the legitimacy of my claim—and my ownership would be difficult to maintain without a continuing confrontation with others. Thus, if one or more of you should try to forcibly take some of my water, it is unlikely that the rest of you would come to the defense of my claim. If that should prove to be the case, I might be able to defend my interests by myself—just as any of us are free to try to satisfy all of our economic wants without trading with others. But without the support of my neighbors, the security of my claim will never be any stronger than my level of constant vigilance in its defense. I might have to mount a twenty-four-hour-a-day defense of my property, which I could likely not maintain for more than a day or so. In a short time, my property claim would probably be overrun and, worse, I might come to be regarded as a pariah with whom the rest of you might choose to have no further dealings. The advantage, to me, of behaving reasonably toward the rest of you in order to have my claim respected, should be evident. By relying upon the respect accorded my claim by the community, my own time would be freed from having to maintain a constant vigil, thus allowing me to pursue other interests and to trade, to my benefit, with the rest of you. Such are the dynamics by which marketplace transactions—grounded in liberty and respect for property interests—generate individual and social well-being.