Everything that emancipates the spirit without giving us control over ourselves is harmful.
— Johann Wolfgang von Goethe
Ownership is a practical concept, having less to do with abstract philosophic principles than it does with decision-making power. For this reason, the essence of ownership is found not in certificates of title, sales receipts, or recorded documents; but in the socially recognized authority to exercise control over an item of property, i.e., to direct what will or will not be done with it. When we are able to identify the person(s) whose will, according to the consensus of the community, is to prevail in determining the use or disposition to be made of any entity, we will have discovered who the actual owner is. But what is meant by “control?”
Control goes to the essence of ownership. To be an owner of anything, whether a chattel, real estate, an intangible interest, or yourself, is to be the effective decision-maker over such an item of property. The owner is the person whose will can be exercised over a property interest without having such control subject to veto by another. In a principled approach to property ownership, the element of control is inextricably tied to the claim concept. A claim of ownership derives its validity from a recognition by others, of the inherent worthiness of an individual to act to sustain himself or herself through negentropic action in the world. To have one’s will respecting one’s own property subject to preemption by another, whether an individual or the state, is to deny the existential significance of each of us, and to elevate such preempting authorities to the status of our owners. Once we acknowledge others to have rightful control over us, we become mere resources to their ends. To have any functional meaning in the world, our negentropic efforts must be directed to resources that can be converted into the energy necessary to achieving such ends.
It is this capacity to control a property interest that makes a claim of ownership meaningful. What is it, for instance, that prevents me from laying claim to the ownership of the moon, and to have others respect my claim? There is nothing any more unique about owning the moon than for our ancestors to have laid claim to previously unowned land on the North American continent. The moon certainly has a boundary: it is a self-contained entity. If no one else has already done so, I could run newspaper ads throughout the world asserting my claim to the moon’s ownership. But no one would be expected to respect my claim because I am not in a position to exercise decision-making control over the moon. Standing down here on Earth, there is no way that I can exert my will over the moon to have it reflect my purposes. Because property is essential to us as a pragmatic means of extending our will over some portion of the world in order to reduce entropy in our lives, the inability to exert such control over a given entity renders such a claim pointless. And yet, were I to actually go to the moon and stake out my claim to some portion of it, over which I could have such control, my claim would be entitled to respect by the same principles of discovery and claim that produced much of the post-Columbian settlement of North America. This distinction underlies Locke’s thinking as to when a claim is entitled to the respect of others. On the other hand, collectivist thinking has led a small handful of nations to ratify an international “Moon Treaty” which would, if more widely adopted, ban legal ownership of any portion of the moon by any “organization or person” unless such organization is an international governmental body. The old mindset of government agents sticking flags in the ground and claiming ownership and control of the great outdoors now threatens outer space as well.
A similar problem existed with the old legal maxim that landed property rights extended from the center of the earth into the indefinite reaches of space above the land. As I am unable to exercise any control over space some ten million light years beyond the surface of my land, it is meaningless for me to claim such an interest. The courts have long since recognized the extent of air rights as being measured by the nature of the use being made of the land. The extent of one’s ownership of the space above the land (i.e., the control one exercises over the surface) helps define the boundary of the property. Thus, a wheat farmer’s air rights would be less than the rights of an owner of a one-hundred-story office building. For this reason, I would have no justifiable claim—either in law or by the nature of property—against airlines flying their planes some thirty thousand feet above my house. Because the airlines do control such space (i.e., by regularly flying their planes through a specifically bounded area), they would enjoy such a property interest. On the other hand, if I have been operating an observatory on my land since before the airlines began flying through such space, my claim should prevail over theirs. My control over the surface might then be said to conform to the ancient maxim that my air rights extended into the endless space above my land.
To bring the issue down to earth—pardon the pun—what would prevent me from laying claim to the Earth’s atmosphere? Again, the atmosphere is bounded—albeit at increasingly thinner dimensions as one approaches outer space—and I am declaring my claim to its ownership. When I ask my first year law students this question, I usually get an empty response along the lines of “because everyone needs to breathe air.” “Then they’d better start coming up with some money to pay me for the privilege,” I tell them. I remind them that everyone also needs to occupy space, and consume food and water, and yet private ownership of these resources has not been rejected for such a reason. The grocery business is dependent upon the grocer’s owning such food whose claims he or she later sells to customers. It is the very importance of such resources to our personal survival that requires us to be free to claim and control them, and generates markets for the suppliers and consumers of such commodities. If I am to effectively reduce entropy in order to sustain myself, I must be able to consume energy from our world—including air—to the exclusion of every other person on this planet.
At this point, I usually get a student asking: “but how could any person get control of the atmosphere?” When I remind them that some people do extract oxygen from the atmosphere, put it into oxygen tanks, and sell it to the public, they begin to see that there is a principled way to address such issues. They also begin to see how the question of ownership is tied to the capacity to exert control over a specific subject matter of property. It is the ability to capture free oxygen and confine it within the boundaries of a tank that gives meaning to a claim of ownership. Should any of the oxygen escape from the tank, the ownership interest in the free oxygen would probably be lost because, while the oxygen would continue to have a molecular existence, it would no longer exist in a form that could be differentiated from previously unowned oxygen molecules. As such, the oxygen would have lost both its boundary and the erstwhile owner’s capacity to control it, thus depriving the owner of a claim entitled to the respect of others. My inability to reduce the atmosphere to my control in order to exercise my will over it would make my claim as meaningless as my claim to the planet Neptune. Furthermore—as with my earlier hypothetical example in chapter five of claiming ownership of the island’s fresh water supply— even if it were possible for me to control the atmosphere, the likely refusal of others to respect my claim to the air would render it indefensible.
The control factor is what makes patents and copyrights difficult to reconcile with property principles. If one writes a poem, novel, or other literary work, and retains possession of the manuscript, one’s claim and control—hence, ownership—remains intact. But when the author chooses to release that work to others, his or her control is lost and, like the hypothetical of oxygen released from a tank, so is the claim to exclusive decision-making. The common law courts have followed just such reasoning, recognizing a writer’s “common law copyright” in unpublished work that ends when the author “publishes” (i.e., makes public) its content. If a writer or inventor were to enter into a contract with each purchaser to not reproduce his or her work, its creator would retain a property interest in the terms of the contract. But this is not the way the present system works. Instead, the state has enacted patent and copyright legislation that, by fiat, provides authors and inventors with property interests for which they have neither contracted nor otherwise retained control.
A question that is invariably raised by critics of privately owned property has to do with the quantity of property one might claim. “In early American history, what would have kept one individual from laying claim to all the land that had not previously been owned by others?” is the usual form of such an inquiry. The fear that a few individuals might amass large landholdings seems quite misplaced in a society in which property is privately owned. In the first place, such a fear appears to be a carryover from feudalism, when wealth and status were synonymous with state-conferred and enforced ownership of land. Secondly, as history has shown, it has been governments, not private individuals, that have laid claim to entire continents by placing flags in the ground. The largest landholder by far in present day America is not some billionaire industrialist, or a “Fortune 500” corporate giant, but the federal government.
Historically, individuals tended to claim only as much land as they could reasonably manage and control. The state might have the resources—extracted from taxpayers—to control vast quantities of real estate, but individuals rarely do. As long as one’s claim of ownership is effectively limited to what that person can control—an expression of the Lockean “labor theory” of ownership—the quantity of land claimed by private persons would tend to be minimal. Furthermore, if the strength of ownership claims ultimately rests on the willingness of one’s neighbors to recognize and respect such claims, a person would have to test the limits of his or her claim within the community. Is it likely that a claim to a ten-acre tract would be respected? Probably so. Would similar respect be accorded a claim to half the North American continent? Probably not.
Under any system of property, the claim of ownership issue always comes down to the question of who is to exercise ultimate control. How, and by whom, will authority be exercised in our lives? Will decision making be decentralized into the hands of individuals, or centralized in institutional hierarchies, particularly the state? Because control is the defining factor in identifying both ownership and the locus of authority over our lives, such questions raise a deeper inquiry into where the ownership of our lives resides. Whether or not we choose to claim that ownership has more than simply an abstract, arcane significance. It goes to the very essence of what it means to be a human being. Individual liberty and self-ownership are synonymous concepts; we enjoy liberty only insofar as we insist upon the exclusive authority to control our own lives. For liberty to prevail, we must claim —and our neighbors must acknowledge—our self ownership.
These are the kinds of inquiries we have never been encouraged to undertake. In our highly structured world, such authority is centralized in the state. Because we are comfortable allowing established authorities to formulate our questions (and answers) for us, and because such entities have no interest in having us question the existing arrangements, many readers may be inclined to regard the inquiries I am suggesting with suspicion or anger. Such a response will also come from the institutional question-keepers, who have always preferred that we not ask troublesome questions. But centralized authority necessarily carries with it centralized control over the lives and property of us all. To the degree our personal decision-making has been preempted, we have lost the control—hence, the effective ownership—of our lives. If we are to live freely, intelligently, and responsibly, we must become aware of the implications of the dynamics of both centralized and decentralized systems.
In a system of privately owned property, there is no confusion—and no conflict—in the matter because claim and control will be integrated into a specific owner. Conflicts will arise only from a failure to either identify or respect separate property boundaries and the claims implicit therein. Stated another way, conflict is generated when control over property is severed from ownership. As we saw earlier, an owner may create multiple interests in what he or she owns—as, for example, a deed of trust, easement, or leasehold—but, as such interests are defined by contract as expressions of the will of the owner, conflicts will tend to be minimal and resolvable by the language of the agreement.
But in political systems, which are distinguished from one another in terms of how property is owned and controlled, contradiction, confusion, and conflict will always ensue. A woman who is prevented from putting an addition onto her home because local housing codes prohibit it, or a farmer who is legally precluded from plowing a portion of his land because it is the habitat of an “endangered species”, or a person who is compelled by a court to submit to a medical procedure he does not want, are anecdotal instances of the more pervasive conflict that is consuming our lives. Like the fractal patterns observed in the study of chaos and complexity, individualized conflicts experienced by these owners get enlarged into the more pervasive hostilities found in zoning laws, urban renewal projects, and eminent domain practices. War, itself, becomes the exaggerated expression of the conflict model that inheres in any systematic trespass of property interests.
Furthermore, because the existence of the state is inherently incompatible with a system of private property, language must be twisted and corrupted to disguise the nature of governmental action. In the American political system, which still pays lip service to the concept of private ownership of property, a candid admission of the confiscatory nature of government regulation might prove unsettling. Consequently, the courts have historically resorted to the meaningless distinction between “control” and “ownership,” or between “regulation” and a “taking.” Whatever the degree of interference with an owner’s decision-making, however, all forms of state regulation amount to some taking of a property interest. If you have $100 in your pocket, and the state forcibly deprives you of the right to use $10 of that amount as you choose, is such regulation any less a taking of your property because it has left you—at least for the time being—with control over the remaining $90?
In furtherance of such subterfuges, and consistent with the divisive premises upon which political systems are founded, our formal political/legal system has fragmented ownership into the subcategories of “title” and “control.” The purpose in doing so is to disguise the state’s regulation of private property as something other than a taking of ownership interests. The word “title” relates to “official authority or power,”1 and generally implies the kind of ownership that a court of law would recognize as valid. When the state presumes to define, and thus legitimize, claims to property ownership, such authority necessarily carries with it those limitations on private control that are mandated by legislative or judicial power. If one insists upon using his property in ways that violate such governmental restrictions, he runs the risk of losing title to that property.
Government regulation not only usurps the authority of owners to control the use of their property, but the power to transfer their claims of ownership via contracts with others. As we have seen, a contract is but an agreement, by two or more persons, to exchange claims to the ownership of their respective property interests. Thus, when the state, through its regulatory practices, intervenes to alter the terms of this contract, or to decree, under statutes defining legal status, who can be contracting parties, it is denying people control over their property interests. Extended to its logical conclusion, such regulations amount to a denial of the self-ownership of the contract ing parties, as they are denied the liberty of controlling their own efforts and resources to sustain themselves.