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Friday, March 1, 2013

Claim: The Will to Own

Private property began the instant somebody had a mind of his own.

— e.e. cummings

Having considered the physical nature of property, our attention now turns to its social implications. Contrary to the assumptions of our politically conditioned thinking, is it possible for a system of privately owned property to maximize, without contradiction or conflict, both individual liberty and societal order? Why do such forms of entropy as victimizing crime, political oppression, and the unintended injuries we inflict upon one another, ultimately reduce themselves to conflicts over property? To explore such questions, we must look at the interplay of the two elements of property that are rarely understood, even in our materialistic, industrialized culture: the claim of ownership to, and the exercise of control over those interests we call “property.” To comprehend the meaning and importance of these concepts is to understand how respect for the inviolability of our lives and other property interests is what human liberty and social order are all about, and why all political systems are at war with individuals concerning these factors.
The element of “claim” is the most philosophically controversial feature of property ownership. This is because all property, in order to be owned, must be claimed by someone, whether they be private persons (e.g., an individual, a corporation) or a political entity (e.g., the state). To claim ownership is to assert a right to decision-making control over an item of property. But, contrary to our materialistic assumptions, a claim of ownership does not involve our relationship to an item of property (e.g., a car) but to our neighbor concerning that item of property. Which of us will have the authority to decide the use—or even the destruction—of the car? Upon examination, the idea of having a relationship with your house, or car, or a painting, borders on silliness. It is to others that our claims are directed, something we would not need to do if we were the only human being on earth.
Because property ownership is a social concept, a consideration of the claim element must begin within the context of societal definitions and practices. A claim of ownership is the assertion of one’s will, addressed to others, to be the exclusive decision-maker over oneself or some resource; to have what one claims be immune from trespasses by other persons.
Political and other social systems are defined by how property is owned within them. Every political system owes its existence to some degree of collective claim over property, for each form of government is only a variation on the theme of how authority over property is to be exercised by the state. The claim element is murky for one major reason: the state could not exist in an environment that recognized an unrestrained right of private ownership. Politics is unthinkable without property trespasses and takings. For the sake of their very survival, political systems must convince us that “property rights are not absolute.” On the other hand, the authority of the state to define the limits of our ownership interests is regarded as absolute! As we shall discover, all property interests are, by the nature of ownership, absolute, it being only a matter of determining whether individuals or the state will have the ultimate claim of authority.
Feudalism is a politically structured system of land ownership, wherein all feudal lands are ultimately owned by a ruler— such as a king—who grants rights to such lands in exchange for continuing duties and services (e.g., participation in fighting wars, which was that system’s principal purpose).
In a communist system, the state nationalizes the ownership claims of all the means of production. Other factions of state socialism part company with the Marxists over the question of what types of privately owned property are to be brought under state ownership (e.g., steel mills, mines, or railroads, as opposed to small farms or retail shops). In each of these systems, the state confiscates both the “title” (i.e., legally recognized ownership interest) and the “control” (i.e., effective decision-making power) of the property in question.
Welfare state systems operate on the premise that a portion of private property will be confiscated from its owners, through taxation, and redistributed to others whom the state chooses as beneficiaries of such programs, be they “poor” persons or “rich” corporations.
Under a system of fascism, the title to property remains in private hands, but the state exercises actual decision-making authority (i.e., control) over the use of such property.1
This helps to explain why increasing numbers of people correctly intuit that there are no fundamental differences among major political parties: at their core, each embraces the authority of the state to regulate how property will be owned and used. That the modern neo-conservative movement has been greatly influenced, if not dominated, by socialists and ex-Marxists,2 dramatically illustrates the collectivist nature of all political systems. To the extent that James Burnham’s “managerial state”— or the modern “corporate state”—has supplanted political ideologies, the scope of its power is nonetheless measured in terms of control over property. Collectivism is a generic concept, not restricted to partisan usage of either the “Left” or “Right.” Since control is the very essence of ownership, one can begin to understand how disingenuous it is to pose “socialism” and “fascism” as polar opposites along a continuum. Each system involves a coercive taking of private ownership, a truth not lost on Adolf Hitler who gave the name “National Socialist German Workers Party”—or “National Socialism”—to his fascist regime.
By contrast, a stateless society is one in which the ownership and control of property remains in the hands of individuals or voluntarily-constituted associations.
Because every political system is grounded in certain assumptions about how property is to be owned and controlled, how we resolve the claim question tells us whether our lives are to be individually or collectively directed. This, in turn, defines the extent of personal liberty in a given society. To the degree control over property is decentralized among individuals, we can be said to have a free society while, conversely, a society in which such authority is centralized in the state is, to that degree, a non-free society. Liberty, then, is defined not in terms of how much property you own, but how much authority you exercise over what you do own.
At this point, collectivists can be expected to object to any individual’s claim of ownership. Citing Proudhon’s self-contradictory phrase that “property is theft,”3 they would interject a presumed collective claim on behalf of all mankind. But what is the historic or principled basis for such a claim? Given the diversity of preferences, tastes, values, and other interests that distinguish one person from another, is it conceivable for an abstract “mankind” to express a common will concerning the employment of resources? If it is, is there any evidence that a collective humanity has ever asserted a prior claim to such resources and, if so, against whom was such a claim addressed? Upon what basis can those who exercise political authority allegedly on behalf of such a collective will be assured that they know of what that common understanding consists? Does this proposition amount to anything more than a preference for collective thinking—upon which all politicalsystems depend—over individual behavior? This is a topic to which we shall return in chapter nine.

An analysis of the claim of ownership question begins with the most basic of inquiries: do you own yourself? Because of the central importance that the question of self-ownership has to an understanding not only of property, but to the nature of a free and peaceful society, the first case I have my students read for their first day of law school is Dred Scott v. Sandford.4 Scott challenged his legal status as a slave on the grounds that when Congress enacted a statute prohibiting slavery in the Northwest territories, he had obtained his freedom when his master took him into that region. The United States Supreme Court refused his claim in part on the grounds that he was not a “person”— and thus could not seek redress in the courts—but remained the “property” of his master, an ownership interest that could not be lost by a person taking his property from one state into another.
This case has far more profound meaning than its racial implications, going to the question of whether the state should be in the position of conferring legally recognized “personhood” upon human beings. Self-ownership and other private property principles have long been denied by governmental regulation of transactions among people. In 1861, Henry Maine addressed this problem in an essay concerning the locus of authority for determining the sources of the rights and duties of individuals.5 Were such matters to be decreed by traditional, family-based definitions, or by agreements entered into by individuals? Maine characterized such rights and obligations as deriving either from “status” (e.g., family birth order, gender, caste) or from freely-negotiated “contracts,” adding that “the movement of the progressive societies has hitherto been a movement from Status to Contract.”6 By this, he meant that, historically, the determination of one’s rights and obligations had moved away from legally defined status to those based upon voluntary contracts.
While Maine focused on family-generated expectations in his discussion of “status,” these competing concepts also apply to politically-imposed versus individually bargained-for relationships. To illustrate the point: a legal system may prohibit married women or minors from owning property or entering into contracts on their own behalf. This is not because such persons had agreed to such arrangements, but because they were imposed upon them by virtue of their legally-defined “status” (i.e., “married woman,” or “minor”). A legal system operating upon such principles is, to the extent of such imposed restraints, status-based. On the other hand, if these same individuals are able to freely bind themselves, their rights would reflect a contract-based system. Minimum wage laws, rent control ordinances, and government mandated product standards, are a few more examples of how status-based rights conflict with those freely contracted for by employers and employees, landlords and tenants, or retailers and customers.
Dred Scott was challenging the practice of state-conferred “status” that defined him as the property of another instead of recognizing his claim to be an owner. From its very inception, this nation’s history has been characterized by a profound disrespect for claims of self-ownership. The institution of slavery and the despoiling of the lives, lands, and cultures of many American Indians, represent a form of entropy that our society has still not managed to work out of its system. While such practices have been attributed to racist inclinations—which is certainly true—what has been overlooked in the assessment of such brutalities was the implicit denial of the principle of selfownership. While almost all thoughtful men and women now condemn these earlier practices, there has been little awakening to the importance of asserting the case for self-ownership. To the extent that we deny our own self-ownership, we have not ended slavery, but only redefined it. By subjecting our lives to the control and management of institutional authorities— particularly the state—we have done little more than transfer our allegiances to new masters. Since the ability to overcome entropy is essential to survival, and since external resources are the only means available to any living thing trying to overcome entropy, state control of any sort has anti-life implications.
How you answer the self-ownership question has profound implications, for control over your life will be exercised by someone, be it you or another. If you are unwilling to assert a claim to your own life, you can be assured that there are others who are prepared to do so in order to further their interests. The question of whether you or the state is to have the ultimate control over your life underlies most political and legal issues.
While there are no objectively “right” or “wrong” answers to the self-ownership question, there are consequences that flow from how we answer it. How the question gets resolved—or whether it even gets asked—goes to the essence of what is meant by a claim of self-ownership: the assertion of one’s will to have exclusive power and control over one’s life. As we explore this question, we get a sense of how deeply it cuts into our lives— whether we think of ourselves as self-controlling, and, therefore, self-responsible individuals, or as subjugated and dependent members of an undifferentiated mass.
Social conflict arises out of a sense that one’s interests have been trespassed by another. As we have seen, the extent of our ownership interests is defined by the boundaries of what we claim. Since it is not an expression of our liberty to transgress the boundaries of others, our decision-making authority necessarily ends at our boundary lines. If each of us confined our actions to what is ours to own and control, conflict with others would cease. This is why peace and liberty are compatible only when considered within the self-limiting context of property ownership. Can we imagine a violent act that is not a trespass to some property interest? Can we imagine a peaceful act that is a trespass? Only when each of us enjoys an absolute authority to determine what we will and will not do with what is ours— insisting upon the boundary line that assures both our inviolability by others and confining the reach of our own actions— will we enjoy what political systems deny: a community of mutually self-respecting men and women.
It may be easy to agree with such an idea when it is offered only as an abstract proposition. How such a concept plays itself out in a social setting, however, is dependent upon whether, and under what circumstances, any of us can assert a property claim that others are bound to respect. Does the urban gang member whose sense of territorial integrity is violated by another gang’s graffiti have a property claim that should be honored and, if so, by whom? Along related lines, is an offense to one’s “egoboundary” identity, such as in the uttering of a racial slur, or the burning of his or her nation’s flag, or denying the existence of a god to a religious person, worthy of being considered a trespass or, in the alternative, should such acts be respected as the behavior of a property owner? What about a local retailer who resents a competitor moving into “his” neighborhood and attracting away “his” customers? How free, peaceful, productive, and orderly would a society be if property claims were not considered inviolable, but could be taken from the owner by force? In order to answer such questions, how do we assess the basis of one another’s claims of ownership? Is there a principle to which we can resort that rises higher than the childish refrain “I want what I want when I want it?”
In a culture that dotes on material values, the “claim” element appears to have mystical qualities. It has certainly been the most difficult concept for my students to fathom. But there is nothing any more mysterious about human beings proclaiming themselves to be the owners of things than there is for wolves to urinate, birds to sing, or elk to bellow their respective territorial claims. While the “right” of individuals to acquire and maintain control over property has been articulated by numerous “natural rights” advocates, the claim element does not depend upon ideological commitments. The need of all living things to occupy space and ingest energy from their external world offers an adequate explanation, and justification, for their assertion of exclusive interests in property. Because we are social beings who can sustain ourselves only by the individual consumption of resources, the property principle is at the core of our well-being.

Boundaries of Order: Private Property as a Social System

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