Property or Property "Rights"
By Anthony de Jasay
Sophisticated talk about “property rights” when what is meant is “property” helps to prepare the ground where both lose much of their force.
I live in a part of France reputed for the apples it grows. Mindful of the promise, a while ago I have planted a few apple trees in a corner of the paddock adjoining my house. In 2005, the year the first and rather modest harvest was at hand, Jean Pierre Raffarin, the prime minister of a supposedly centre right French government under a nominally centre right president called for sharing broadly the “fruits of growth”. It struck me at the time as odd that he feels entitled to talk with a straight face about sharing, and more broadly than that, sharing the fruits that are being fully shared out in the process of bringing about those fruits. It seems to me that most of the apples were due to my family for providing the land, having the trees planted and the fruit waited for, with a small share due to the part-time gardener for looking after the trees as and when needed and whose share I had advanced by paying him mutually agreed wages for his contribution. There was no residual share left, to be distributed “more broadly”. Obviously enough, any further distribution to anyone must have come from my share and gone to parties who have not contributed to the growing of the “fruits”. What seemed to me more distressing than the all too usual trick of the politician to show his generosity with goods that belong to somebody else, was the ready acceptance by the public of the fiction that the “fruits of growth” are a kind of residual, a bounty left over after due claims arising in the processes of production have been satisfied. Sharing the residue “more broadly” (more broadly than what?) hurts no valid claim to it.
The public’s unquestioning approval of proposals to share what has already been shared springs from abundant sources. Proposals to share that which has already been shared favour the immediate material interest of the majority. They are made for that very purpose. By virtue of this, they are judged to be “democratic”, a term used to signify moral approval. All this is well enough understood and exploited in everyday politics.
Another major and equally abundant source of the readiness to share and share again goods that have been shared once before is the confusion about what it means that something is owned by somebody. The confusion is further confounded by a widespread incapacity to perceive the difference between a freedom and a right, and the insistence to say “right” both when the speaker means “right” and when he means freedom.
A scarce and desirable object first passes from unowned to owned status by virtue of two timeless conventions that underlie any lasting human coexistence. One is “first come, first served”, the other “finders, keepers”. They largely overlap and apply according to the case in question. The latter also implies the presence of cost of research in technology and exploration for natural resources. Both the legitimacy of ownership and the incentive for jointly and severally enforcing it can be ascribed to its rendering life more commodious (as Hobbs calls it) and less threatening for owners and non-owners alike.1
Once the object passes into owned status it becomes part of the owner’s feasible set where the owner is able to choose from all alternative acts the set contains. He is not only able, but also free to perform such of his feasible acts that do not infringe a rule agreed spontaneously and adopted by the participants in the convention, or otherwise falls under the presumption of freedom. The latter, put simply, means that no sufficient reason has been shown for forbidding the act. It should be understood that the owner of the good that provides the feasibility may be an individual, but also a family or any definable group that chooses with a single will, though not one whose members have separate and potentially opposing wills overridden by a collective choice rule.
Once the object in question has an owner and has become property, it is also a freedom in the above sense, of nihil obstat [nothing stands in its way]. It permits a large variety of free acts, such as possession, usufruct, transfer by sale, gift or legacy promising, and the assumption of obligations, contracting, and eventually the submission to easements. One significant free act is the creation of new property by abstinence from consuming income, i.e. by saving. Quantitatively, it is by far the most important component of property.
Since a defining characteristic of property is that there is no sufficient reason against it within the system of spontaneously adopted conventions, it is grossly redundant, an ugly pleonasm, to speak of a right to property or property rights. This, of course, is true of any properly defined freedom. You do not have a right to free speech if speech is indeed free and defined as such. Those who interfere with it without sufficient reason and gag the speaker are doing a wrong. It goes without saying that they must not do this wrong to you or others, and to declare that you and the others have a right not to be wronged is both silly and also undermines the force of the concept of freedom which does not gain from the inference that you need a right to enjoy it. A classic example of undermining freedom by creating a right to it is John Rawls’s First Principle of Justice, which lays down that “everyone must have a right to the greatest possible freedom” instead of saying that “everyone must have the greatest possible freedom”. In modern economics, it has become the fashion not to speak of property, but of property rights in the plural; there is even a “property rights economics”. It uses the notion of a “bundle of rights”, each distinct from the others. Each can be separately removed from the bundle. Once each has been removed, the concept of property exists only like the grin of the Cheshire Cat. Why is this a reason not only for intellectual distaste, but also for anxiety and warning signals?—and why more so with regard to property than any other major freedom? A right is an empty word of no consequence unless matched by an obligation. The right is an option to call for the discharge of the matching obligation. You may be hungry for a bowl of soup, but you have a right to it if someone is under an obligation to serve you one when you demand it. If the right holder has no “obligor” opposite him with the obligation to deliver the soup when you demand it, your hunger for it is at best a wishful aspiration and calling it a right is irresponsibly and sanctimoniously playing with false meanings.
If “property rights” are not to be irresponsible falsities, there must be an obligation that gives meaning to the right. Who conferred the right and imposed the obligation to match it? There is a story that answers this riddle, though it is found mostly between the lines of current political philosophy and rarely, if ever, brazenly in its texts. Property, we are subliminally told, is created by society and its grace confers rights to it to nominal owners. The owners must be aware of the moral debt they owe to society for its grace. Society is under the obligation to provide the rightholders with security of tenure and conflict resolution services they may call for. It has accepted this obligation by entering into the social contract. Among other accomplishments imputed to it, the social contract has created the state, an agent of society. As such the state carries out the obligation to protect property rights against all except against itself. The latter exception, obviously of decisive effect, is due to the state’s right of “eminent domain” in the broadest sense, and to the authority conferred upon it by some overriding collective choice rule (e.g. majority will). The holders of property rights, in turn, have the matching obligation to submit to these rights of the state. Two discernible obligations match two overtly declared rights, a pair each for the property right holders and a pair for the state. This seems to be the contrived logic of modern property rights theory, and it does seem to point towards the conclusion that we own what the state has granted us and allows us to own, but no more.
I think this conclusion, though plausible enough, is not inescapable. This does not reckon with the chronic incapacity of the state to stay within tolerable limits when overriding the individual by imposing the collective. Much as the fashionable property rights doctrine may persuade the public that this is how things are and should be, soon enough there will be enough people to call out that enough is enough and a different game must start. In many countries today, this tipping point has probably been reached.
For example, “The Passions that encline men to Peace, are Feare of Death; Desire of such things as are necessary to commodious living; and a Hope by their Industry to obtain them. And Reason suggesteth convenient Articles of Peace, upon which men may be drawn to agreement. These Articles, are they, which otherwise are called the Lawes of Nature: whereof I shall speak more particularly, in the two following Chapters.” Thomas Hobbes, Hobbes’s Leviathan reprinted from the edition of 1651 with an Essay by the Late W. G. Pogson Smith (Oxford: Clarendon Press, 1909). Chap. XIII.: Of the Naturall Condition of Mankind, as concerning their Felicity, and Misery.
The State is also available online on this website.
For more articles by Anthony de Jasay, see the Archive.