Home > Philosophy > Property, law and government (crosspost from Crooked Timber)

Property, law and government (crosspost from Crooked Timber)

February 19th, 2015

A while back, in a context I can’t exactly remember, I made the point, which seemed to me to be obvious, that all property rights are derived from states governments, and so it’s impossible to sustain a claim that state government interference with property rights is inherently wrong. It rapidly became apparent that this point is controversial in all sorts of ways, so I thought it might be worthwhile to work out where the main lines of disagreement run.

The great thing about a blog like CT is that, on (almost) any topic, lots of my co-bloggers and readers know more than I do, and most aren’t shy about saying so. So, please point me to the relevant literature (about my only reference point here is James C Scott).

I’ll with the classic approach of defining my terms.

* Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society
* Law is a set of rules in a given society that can legitimately be enforced by coercion
* The state Government is the set of institutions that determines and enforces the law in a given society

If these definitions are accepted as a characterization of property, law and the state, applicable to all human societies, then the claim that all property rights are derived from a state is, I think, true by definition.

I think (but feel free to prove me wrong) that the first two points are reasonably uncontroversial, and that all societies have a body of law that, among other things, defines legitimate property rights [^1]. The big problem (I think) comes with the term ‘state’. Obviously, if your definition of a state requires the existence of a distinct ruling class, supported by a body of administrative and military specialists, and exercising unitary and exclusive control over some given territory and its inhabitants, then lots of societies are ‘stateless’. But that’s just semantics: we can use (or maybe misuse) a term like “Westphalian state” for the version just described and come back to the question of whether there are, or have been, societies without any institutions for determining and enforcing the law.

An obvious way of dispensing with such institutions is to suppose that the law is inherited by tradition, is unambiguous in all cases (or at least, sufficiently clear that any ambiguity or gap can be resolved by consensus), and is universally obeyed, so there is no need to make new laws or enforce existing ones. Discussion of stateless societies that I’ve read often seems to imply something of the kind, but hedged in various ways, most obviously with references to “elders” who make judgements that are generally accepted.

Replace “elders” with “old, high-status men”, and you get something that looks to me a lot like, say, the pre-1980 US Supreme Court, complete with the claim that they are merely announcing the law rather than making it. So, I don’t buy the idea that a society can have law without legislators and law-enforcers, even if these are not specialist roles. But that’s a judgement based on near-zero expertise in anthropology, is feel free to set me straight.

[^1]: The European occupiers of Australia found it convenient to deny this when they described the country as terra nullius, but even at the time it was obvious that they were taking land that was the property of the indigenous inhabitants.

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  1. Mayan
    February 19th, 2015 at 17:24 | #1

    I don’t have sources to hand, but the scholarship on early Icelandic society, while not a description of anarchy, does describe a system in which the amount of law imposed on the people was minimal, to the extent that the entire corpus had to be read aloud at each gathering of the Althing. It was a minimal state, assuming it was really a state, but that minimalism seemed to work for them.

    The idea that the state is necessary for property rights doesn’t seem entirely satisfactory. The people I’ve known who have lived on a kibbutz have all come to the conclusion that socialism doesn’t work, although it might be more accurate to say that it doesn’t scale beyond a small group. This scaling problem might explain why some small tribal societies managed just fine with it. Beyond that scale, and without emotional bonding, people seem to have an intuitive concept of their labours and hence being entitled to a reward for their labours.

    It is this sentiment which seems to underlie and motivate the idea that some rights exist, without needing a state to proclaim them. A state or government makes enforcement of those rights easier to achieve. If someone has the right to use their time, it seems strange that a state is necessary to allow someone to use their time to sleep, pick fruit or whatever, It is rather more intuitive that such a body might be useful to prevent others from shackling a person and taking their time, labours and freedom. That said, and as you point out, governments have often been complicit in such crimes.

    The idea of scaling might also explain why socialism beyond the scope of emotional bonds requires a state to subjugate that intuitive understanding of property and the fruits of one’s labours. The remaining kibbutzim survive because they are self-selecting people and they are free to leave. Similarly, other groups that have survived have also had the option to leave. However, socialist states have tended to prevent people from leaving, which is quite an extreme level of cohersion. Property rights, at least until the current morass of intellectual property etc. was a somewhat simpler system.

    Ultimately, though, all laws are enforced with the threat of violence.

  2. Sheila Newman
    February 19th, 2015 at 17:27 | #2

    All land was initially inherited. It was commodification that alienated it from place and blood (family). Legal systems were then modified to manage this. In Roman law there is still a strong tendency to keep land within the family through the inheritance laws, which penalise leaving land to distant relatives, selling it away from the family, and speculation. Roman Law states (most of Europe) tend to keep more land in family hands and state hands than Anglophone states, where commodification began with Norman law in 1066, whereby Britain was seen as a frontier and only males as knights could own land. Women could not own land, but husbands could acquire land through marriage. Furthermore they introduced primogeniture so that only the eldest son could inherit the land. Thus you got a build up of private land and private wealth and also a build up of landless labour. Property owners held power and favoured enclosures from early times. In the 17th and 18th century in England entailments were systematically written out of property and inheritance laws to bring all properties under a single putative title holder. These major land-holders took over from agriculturalists in British Parliament and shaped the property laws in all Britain’s children (via jurists like HJS Mayne) who also rewrote India’s laws (leading to India’s awful mess). In France, where Roman law was consolidated by Napoleon, there was no similar pool of landless labour and there was no history of enclosures. I believe that the British system is a product of invasion and caste imposition and is actually a deviation from the norm. The Roman (Napoleonic) system is more like the norm.

    I know this will come as a shocking and unbelievable assertion but animal territory is divided up between inheritors in similar ways to the ones we humans have codified. I have written about this in two books, using completely new theory but many zoological examples: Demography Territory Law, The Rules of Animal and Human Populations, 2013 and Demography Territory Law: Land-Tenure and the Origins of Capitalism in Britain, 2014. You can get them via my page here: https://candobetter.net/node/1882

    Different land-tenure and inheritance systems have different outcomes for democracy and for population density.

  3. Newtownian
    February 19th, 2015 at 17:48 | #3

    ” * Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society
    * Law is a set of rules in a given society that can legitimately be enforced by coercion
    * The state Government is the set of institutions that determines and enforces the law in a given society

    If these definitions are accepted as a characterization of property, law and the state, applicable to all human societies, then the claim that all property rights are derived from a state is, I think, true by definition.”

    Nice in theory but the big picture much harder/greyer in practice as evident from even just our favorite encyclopedia. http://en.wikipedia.org/wiki/Property#Property_in_philosophy.

    Some reasons/illustrations why this whole idea of property is greyer:
    – My understanding from EnvSci is that terra nullius wasnt just made up but rather derived from the use of Locke’s ideas on exclusive possession by virtue growing crops working the land etc. http://en.wikipedia.org/wiki/Labor_theory_of_property , which was used in turn to justify the appalling enclosure movement and was itself controversial though I believe its still the basis for our local land property rights.

    – Is it really ‘legitimate’ for a bunch of corporately sponsored lawyers to rewrite rule books in secret to the disbenefit of societies globally as is happening now with the Transpacific and Transatlantic property rights treaty development. Technically the proponents can probably do what they are doing ‘legitimately’ but it is unlikely to be in the spirit of justice which is another matter.

    – Land and property generally is actually a lot less free ‘to use’ than is realized by people. As a general rule for example you cant just utilize property as you like and ignore impacts on neighbours. When you look closely especially in the city these interactions are enormous and continuously applied and constrain our actions continuously. Also on land you have to pay rental in perpetuity. You cant just own it and let it sit there. This rental may be called rates or land tax but it can be nearly the same as if you were renting your dwelling especially in Europe where tenants have a lot more rights. And then we have the delightful grey area of ‘leasing’ as with Canberra whose residents may have a moral right to their homes but as I understand it dont have ownership.

    In short the concept of rights is a bit like money. We are trained think of both as being fixed and solid but really they are dynamic expressions of social relationships at a given point in time and are continually shifting and evolving, sometimes slow (like our current metastable economy, stable legal system) sometimes fast (economic collapse, wars).

    Beyond this one of the fun things about climate change is its emerging capacity to wipe out private property in great swathes especially if you live near the beach irrespective of government dictate and legal documents making in turn a mockery of private property as something absolute rather than something we lay temporary claim to subject to the vagueries of the larger world. Its interesting to see this is absent from the definitions above John. I guess you like the rest of us are still anthropocentric despite attempts to be otherwise.

  4. Marginal Notes
    February 19th, 2015 at 17:56 | #4

    Mancur Olson neatly summarised the situation for me – “There cannot be property rights in any social setting unless individuals find it profitable to claim a property right and the government of a community also finds it in its interest to allow that property right.” I found this applied well to the traditional Bornean society I studied, where individuals claimed property rights to the land they had cleared and the forest trees they had found or planted, and the “government of the community” – essentially the headman of the longhouse and the gathered community members who appointed him (very occasionally her) – upheld those claims on the basis of their customary law (adat) and their detailed knowledge of who had farmed what land when. Enforcement involved sanctions specified in the adat. The community was a territorial group, with clear boundaries separating their domain from neighbouring longhouse communities, and could perhaps be viewed as a micro-state.

  5. February 19th, 2015 at 18:12 | #5

    Surely the libertarians are frothing in indignation!

    Joking aside, just what is property and what isn’t can be quite important to a society. Thus far, the air we breath is not property. However with intellectual property, or ideas can be property.

    Anyway, in my utopia, the nature of property would be the one that best supported the common good. And yes, human nature being what it is, it would take a state to enforce it.

  6. Jordan
    February 19th, 2015 at 18:15 | #6

    I have to raise a hat to you Pr. Quiggin, you have found the source of the initial split/ disagreemnet between the left and right, liberal and conservative: What is the state for.
    Judging from comments on CT, most of people do not understand what state is and what for or how it evolved and most commenters tried to discredit your very good classic definitions.

    I believe that this misunderstanding is why state is desintigrating and failing as worldwide fenomenon which can only lead toward new world war just as the last time and then rediscover it’s meaning trough patriotism that is enforced within the war process. And start over and succed again to be doubted and demolished all over again.

    But i have to add that you can add additional explanations of previous historic governing principles and what fuels them. Some historic governing principles were not writen down as they are today. Today even governing principles within a familly is writen in laws, while previously that was only a domain of religions.
    Original governing principles (unwriten/noncodified) were relying on combination of respect, fear and benefit that leaders (elders) used to enforce rules. That evolved into writen, better organized and institutionalised forms of today, and trough evolution and size it changed terminology used: elders (tribe)- kings (cities) – kings (countries) – president (states) but they all have the same functions.

    Today, such historic formulations of leaders is still present. Rich enjoy leadership roles given by people due to respect, fear and benefit that they offer. This is merging and confronting writen/ codified institutions of the state. It is parallel government that is arriving by manipulation of populace against its official leaders trough use of media. Democracy was supposed to protect population from emergance of such parallel governance, but it is failing due to inherited tendencies of populace of looking up to a king. And it is failing because populace is not understanding what government is for, which you properly described.

  7. Newtownian
    February 19th, 2015 at 18:19 | #7

    ps another illustration of why property rights are a grey area and he concept is becoming increasingly discredited http://www.nakedcapitalism.com/2015/02/vultures-still-circling-argentina.html

  8. Peter Chapman
    February 19th, 2015 at 18:38 | #8

    “Rights” whether they are said to apply to property, civil liberties, human rights, the right to shelter, the pursuit of happiness, etc., are not absolutes; they are not written on tablets of stone and handed to us from some holy hilltop. They only exist, and can only be relied upon, to the extent that people, groups, movements, social classes, are prepared to struggle to articulate them, establish them, and protect them. That reliance is aided if they are “enshrined” in a constitution, or established in some other law or statute; but the need to struggle to protect those rights goes on. Rights are often more asserted than established, and are contested at almost every point, and are very frequently eroded and undermined by powerful social forces, whether of the state, corporations, organised crime and others. Rights can also be defined and redefined in the course of social and cultural change, thank goodness, as in the example of how some people have been successfully arguing for thee right to marriage equality. The arenas in which the struggles over rights are carried out include the state, the legislature, the constitution, the courts, etc., but also include other institutions of civil society, the academy, the press, the marketplace. Defining rights is a social process, not exclusively a legal process.

  9. February 19th, 2015 at 19:19 | #9

    Whether property is created by government or social custom or by “natural law” (morality) is a controversy that goes back into the middle ages. Most medieval theologians (e.g. Thomas Aquinas, William of Ockham) held that property exists by human law, most civil lawyers and canonists (e.g. Pope John XXII) held that property rights exist independently of custom and human law. See “Property and the right to use things” (http://pandora.nla.gov.au/pan/98441/20120504-0000/www.humanities.mq.edu.au/Ockham/NaturalRights.html) and “The Origin Of Property: Ockham, Grotius, Pufendorf, And Some Others” (http://pandora.nla.gov.au/pan/98441/20120504-0000/www.humanities.mq.edu.au/Ockham/wprop.html).

    The best-known early modern exponent of the view that property rights are independent of government is John Locke. See John Locke, http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke2nd-a.html, sect. 25 following (my commentary: http://pandora.nla.gov.au/pan/98441/20120504-0000/www.humanities.mq.edu.au/Ockham/y6710.html). Others held that property exists by custom and law: e.g. David Hume (https://ebooks.adelaide.edu.au/h/hume/david/h92t/B3.2.2.html), JS Mill (http://oll.libertyfund.org/titles/232#lf0223-05_head_039).

    “Bona nullius” was a Roman law term; it did not apply to land. “Terra nullius” is a recent invention. See http://www.macleaypress.com/index.php?page=shop.product_details&flypage=vmj_genx_img1.tpl&product_id=1&category_id=1&option=com_virtuemart&Itemid=1&vmcchk=1&Itemid=1

  10. Morgan Warstler
    February 19th, 2015 at 19:38 | #10

    John Quiggin!

    Finally being emailed on your every post pays off! Not that they weren’t all good, just that now it’s PERFECT.

    * Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society
    * Law is a set of rules in a given society that can legitimately be enforced by coercion
    * The state Government is the set of institutions that determines and enforces the law in a given society

    Jesus man this is exactly true. Not completely, but exactly.

    And nothing you wrote before or after follows from this. So here we go, let me show you the reality, the nature of hegemony. And it shows the error of your thinking. It’s right in there!

    Pre-state there is property, who has property? Those who can LEGITIMATELY coerce others to accept them holding property.

    Property is pre-state, WHY? Because force and coercion are pre-state.

    Now let’s talk about force & coercion. What is it really? It’s called a CREDIBLE THREAT. Everything in life is credible threats. It’s the market, it’s interpersonal relationships, community relationships, it’s the state, it is international / geo-political dynamics, and if ALIENS arrive, just like any relationship between two parties that assume the other party is sentient (even you and your pet dog), one party says IF you do X, I will do Y.

    OK, there are credible threats and therefore non-credible threats.

    Pre-state, who can form a state? the people with the POWER to form the state.

    Post-state, who can end the state? the people with the POWER to end the state.

    Who can end the state? LOTS. Aliens. Another nation. Even nowadays ISIS. Any group inside a nation that can end the state. Maybe AI in 100 years!

    Of course everything I say is true. it’s all so very obvious.

    So let’s finalize it. Why don’t we have slavery? Because the HEGEMONY has determined for whatever reason to not have it. It could be that we don’t have slavery bc the slaves would revolt, and the most people in the hegemony are afraid of dying to eforce slavery. It could be that we could easily have slavery, but most of the hegemony believes it morally wrong. Or maybe they think it is economically inefficient. Who knows why everyone thinks things? It’s 9B brains, each stronger than a super computer, all have reasons and reality – that no other brain is completely sure of – this is why human activity is all credible threat – we are not the BORG. We atomize into consciousness that is not do more than BELIEVE (not know) what is going on anywhere else.

    So, property? yeah we have it bc the KIND OF PEOPLE who can make, create, own property pre-state relate to others who can’t: your dog, us if aliens show up, fish, brain dead humans, dumb humans, etc etc – whoever – SOME animals are more equal than others.

    So, now John, let’s get it right hegemony > government.

    What this means in NO UNCERTAIN TERMS is that government doesn’t tell US what to do. Govt. tells the non-hegemony what t do. If it steps out of line, the hegemony will end govt. and remake it.

    This happens ALL THE TIME. Failed states are actually the rule, not the exception.

    So, those without property? The folks today who don’t hve it?

    They have two choices, follow the system in place on how to obtain it. OR end the state.

  11. Mayan
    February 19th, 2015 at 19:59 | #11

    So, current system: the powers that be enforce a system whereby individuals can own stuff for their own use.

    Let’s propose an alternative: no private ownership. Then, we either have Barter Town or a group of people (the powers that be) controlling who uses what property and for which purposes.

    The big difference is that, under the current system, more people can own stuff and the number of uses to which it can be put is larger. Oh, and there is a non-violent way of transferring ownership.

    I’m not seeing how deleting the concept of private ownership is a win for anyone, except those who are capable of becoming one of the powers that be in a system where they control everything.

    And I’m still struck by the fact that people have tended to want to get out of societies that sacrificed individual rights, such as property ownership, for the greater good. If immigration is flattery, then what is emigration?

  12. Morgan Warstler
    February 19th, 2015 at 20:00 | #12

    What this means John is that govt isn’t some thing you can seize with 50% of the vote, and the hegemony will let you decide who has property. Or if there is property to begin withh.

    Basic pareto power law defines this the top 20% produce 80% in a given year. During a generator, we see the top 40% own basically EVERYTHING, while the bottom 60% has ver little.

    Who decides if we have inheritance? The hegemony. Who decides if we have IP? the hegemony. Who decides what the cops do, the soldiers? The hegemony.

    Property comes from credible threats pre-state, hegemony pre-state agrees to form state, they ENSHRINE their property with legal “rights” – a silly piece of paper, a compact, and agreement -but this doesn’t make them slaves John.

    They are only slaves if they SUBMIT, and once again, they only submit if there is a credible threat.

    Now you see right?

    Govt. only has it’s legitimacy, it only survives, if it ENFORCES property for the hegemony.

    Govt doesn’t get it’s legitimacy for treating us all as equal holders of the earth’s bounty.

    There are things the govt can’t do you wish it could, John. And those limits are REAL. They are BRUTAL to the preferences of many many people.

    There are those that wish we would end property, and the delude themselves they can seize the state with votes, to alter the law, and change property.

    Thats not an option. You want to end property, or just reorganize it? you need to be as strong as the AI, as the aliens, and a man amongst beasts. You need to be ISIS, or revolutionary Americans, you need to make credible threats to kill others if they don’t relent.

    And you aren’t going to do that. So, let’s FOCUS. Your scope of policy making occurs within the boundaries of what the hegemony will ACCEPT.

    Forget the govt. You can’t seize it and gain godlike fiat powers. The hegemony wrote down rules that severely limit what a govt can actually do tot he hegemony.

    The thing is John, once you accept Hegemony > Government, you can INSTANTLY start to make PASSABLE policy.

    Be a moral man John, dont’ use your brain cycles, imagining Govt is the final say. it offends all of us in the hegemony, those of us with property who if the govt came to take it, can and would end the govt.

    Instead, offer up your ideas for policy changes within the boundaries of what we deem acceptable.

    Or make war John.

  13. jungney
    February 19th, 2015 at 20:38 | #13

    @Morgan Warstler

    Who decides if we have inheritance? The hegemony.

    But I don’t imagine that you’ve ever read Gramsci?

    What do you mean, then, or understand, by ‘hegemony’?

    I can hardly wait for your explanation.

  14. February 19th, 2015 at 21:23 | #14

    Pr Q said:

    all property rights are derived from states governments, and so it’s impossible to sustain a claim that state government interference with property rights is inherently wrong…Government is the set of institutions that determines and enforces the law in a given society

    AFAIK,  the only people who whole-heartedly affirm this claim are Right-wing anarcho-capitalists, such as Rothbard. They don’t reject the idea of “institutions that determine and enforce the law in a given society”. They affirm the right of private governance institutions, lets call them Judicial Service Providers (JSP), to define the law of property rights and coercively enforce them as required.

    But they deny people have a moral obligation towards a (Weberian) sovereign governments preemptive claim to a monopoly of jurisdictional force to enforce laws, levy taxation and repel invaders etc. A coercive monopoly is held to be antithetical to morality because it violates the free individual’s supposed inherent natural right to self-government.

    This doctrine implies that a given jurisdiction should be open to free market competition between JSPs. They never really explain why customers who patronise one JSP should accept the (potentially adverse) rulings of a rival one, which might subscribe to a different interpretation of proprietarian justice, a totally different doctrine of justice or, perish the thought, be open to financial inducements to change its rulings. Anarcho-capitalists have a very Platonic notion of capitalism and are inclined to avert their maidenly gaze to actual and existing capitalist governance institutions. (Rating agencies I’m looking at you.)

    The free market in JSPs would seem to be a recipe for civil war. The evolution of the “street” judicial system in the US is instructive.  Back in the day of the Castellammarese War the street existed in a State of Nature in which there was a Hobbesian war of all against all. But “blood”, as Solozzo wisely observed, “is a big expense”. So senior Mafia officials (Lansky and Luciano) suggested the formation of the Commission made up of the most powerful five crime families to act as a shadow government demarcating turf, settling disputes and meting out punishments. Things ran much more smoothly after that. Hey presto, Government is born!

    Pr Q said:

    The European occupiers of Australia found it convenient to deny [that all societies have a body of law that, among other things, defines legitimate property rights] when they described the country as terra nullius, but even at the time it was obvious that they were taking land that was the property of the indigenous inhabitants.

    The Aboriginals did not have anything resembling an institutionalized state, although they did have unwritten laws and a hereditary communal form of property rights. Anarcho-capitalists do have a plausible account for the evolution of property rights in the absence of formal government, based on the Lockean idea of original appropriation, sometimes called “homesteading”, first laid out in the Second Treatise of Government:

    Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own “person.” This nobody has any right to but himself. The “labour” of his body and the “work” of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property.

    Locke explicitly endorsed the principle of Native Title, ironically, given the political complexion of anarcho-capitalists, at least with respect of the Scots who were dispossessed by the Enclosure Acts:

    ‘The inhabitants of any Country, who are descended, and derive a title to their Estates from those, who are subdued, and had a Government forced upon them against their free consents, retain a Right to the Possessions of their Ancestors. If God has taken away all means of seeking remedy, there is nothing left but patience. But my Son, when able, may seek the Relief of the Law, which I am denied: He or his son may renew his Appeal, till he recover his Right…If it be objected this would cause endless trouble; I answer, No more than Justice does, where she lies open to all that appeal to her.’

    The High Court pretty much did use this doctrine to discover Native Title, ruling that Aboriginals do have a legitimate claim to some Australian property which they more or less “mixed their labour with” by making their living in the traditional way: hunting, gathering and fishing. Provided they could prove “continuous connection” to the land. For everything else it was first come, best dressed.

    There is another route to legitimate sovereignty and property ownership. It greatly helps your the claim for Native Title if you demonstrate a revealed preference to fight for your property rights. “Mixing your blood” with the soil is one way to legitimize property ownership. Geography and genealogy are, after all, the basis of evolution. 

    The Aboriginals, unlike the Indians and the Maoris, did not put up much of an organized fight against the British colonists, at least not enough to earn a treaty. This weakened their claim to property in the eyes of their conquerors. If you don’t fight, you lose.

  15. jungney
    February 19th, 2015 at 22:05 | #15

    JQ, a seriously brave move, asking such a question about ‘what is the state?’ in a public sphere dominated by libertarian ideological monkeys whose primitive howls and yips merely serve to reinforce public distaste with the ‘chattering classes’.

    There are so many possible and reasonable answers to the issue of “why the state?” OK then, I’ll have a go. The state, at its birth, arose from the democratisation of the sovereign authority of the ‘ancien regime’ during the French revolutions. The modern state has as bloody a past as the modern state has a bloody present.

    Today, however, the state, which is merely the name we give to the formal and popular rule of authority that has succeeded the rule of noble classes in the wake of the French revolutions, is just a realm of contest between competing claims for authority over others.

    This is not necessarily a bad thing. The modern state is required to perform, by popular assent, according to rules of rationality and justice the like of which were never known to the rule of royalty, all of whose claims to authority derive from the laughable idea that the personnel of primitive rule can all detail their own family lineage back to god. The modern state is therefore required to consistently apply the law, whatever that law may be, according to consistently generalizable principles.

    This is an improvement on the sort of clientilism, personal favour and patronage that characterized the regal state. It is imperfect, but it is subject to appeal and the demands of justice, which no-one could say about the rule of ‘royals’. It is, therefore, subject to the demands of the populous for equality and justice. Across the board. It is the prime mechanism by which the earth’s poor, subordinate and disempowered can seek equality of outcomes.

    Without which, we can imagine nothing more than that the vast majority of the Earth’s population will live in servitude and slavery to those who aspire to be planetary pharaohs.

    In other words, the modern state is an arena of contest in which the masses of humanity can contest matters of justice, distributional equity and identity free from the type of foerelock tugging servitude that characterised any appeal to power and authority in pre-modernity and prior to the arrival of the democratic impulse. The modern state is also that arena in which the details of the social contract can be worked out. This is an arena in which the dispossessed disavow violence against the person and property in favour of a negotiated settlement. This negates the otherwise necessary resort to violence to which the masses of humanity can turn, with a clear conscience, in order to assert their equal entitlement to the means of life.

  16. February 19th, 2015 at 22:51 | #16

    There is an air of dystopian doom and gloom to some comments. And yet there is part of me that agrees with this sentiment.

  17. Ernestine Gross
    February 19th, 2015 at 22:55 | #17

    If ‘the state’ (government) constitutes the source of the power of enforcement of ‘property rights’, then the source of property rights is ‘the state’.

    If individual ‘muscle power’ (or guns) constitutes the source of power of enforcement of ‘property rights’ then the source of property rights is not ‘the state’.

    If the distribution of ‘property rights’ is a unique and stable equilibrium of a cooperative game then neither state nor individuals’ muscles power (or guns) is the source of property rights.

    If ‘blood relations’ constitute the source of power of enforcement of ‘property rights’ then JQ’s description on CT on what happened at some time in Iceland’s social history: “The ownership of property was based on a sort of stalemate position among those families, where the value of additional property didn’t justify the cost of starting a war to grab it.” is an example of a state of equilibrium of blood relation coalitions.

    What is ‘property’? In contemporary Sydney it is ‘real estate’, in particular real estate that was for sale and has been sold – ‘the property market’. In my household, my toothbrush is my exclusive possession and I would use any muscle power and blood relation power I could muster to defend it even though I am not convinced there is a statute on the exclusive ownership rights of a toothbrush. Would I go to jail if I had stolen my toothbrush? Does it matter how ownership rights are obtained? Is ownership rights the same as property rights?

    Property rights. Suppose I start off with the premise that I have the exclusive right over myself. This right has a natural time limit. It is definitely finite. What can I actually do with this ‘property right’? To sit, to stand, to sleep – elementary properties of myself which characterise me having control over my property – I need space, physical space. What if all the physical space is the private property of others? What use is my ‘property right’ if I have no right to property? (the same for food, clothing, housing, …. toothbrush …..).

    Suppose I start off with an object, a book, which I acquired legitimately. It is my property. Do I have control over this property? Yes and No. Yes, because I can do with ‘the book’, defined as a bundled set of paper pages, what I want. No, because I am not the only person who can read it unless it is the only copy. So, the general answer is, not necessarily.

    The Little Prince by Antoine de Saint Exupery is my favourite book on the notion of ‘property rights’.

  18. February 19th, 2015 at 23:26 | #18

    My cat holds property, as do the others in his neighbourhood. They have negotiated not only the boundaries of that land, but also some common relatively uncontested land that they share. Border disputes are common, but they mostly have a mutual arrangement of secure property.

    I don’t think they have a state to speak of, though I’m willing to entertain the possibility that they are a collective of evil geniuses who control all national governments and the UN.

  19. Tobias Barkley
    February 20th, 2015 at 00:14 | #19

    I once listened to a lecture series by an Austrian economist who claimed that the free market was superior to government because the market was natural. This seems ludicrous to me because if the market is to function reasonably well it requires property and contract law. So I’m glad to hear I’m not alone on the point.

    I have thought about the problem a bit in relation to contract, as it seems a bit simpler than property. It is easy to conceive of systems of contract that require no enforcement at all. For example, with some auction websites or overseas sellers buyers have essentially zero enforcement options, which is why reputation (google stars etc) is so valuable. These types of markets truly are not created by the government. But they are not that good for anything more than relatively small consumer purchases. On more important transactions reneging is more tempting and the damage caused is greater so the market needs enforcement to give participants confidence they are not going to lose it all if trust is betrayed. Self-enforcement is risky and expensive. So I would say that government is not completely necessary for contracting to happen but it is necessary for it to work at all well.

    I think government enforcement is even more important for property where reputation is less important. Reputation is required to get anyone to contract with you before you reneg on them, but no reputation is required to take someone’s property.

  20. James Wimberley
    February 20th, 2015 at 01:46 | #20

    (Cross-commented at CT)

    Nobody has considered the property of small children, and it seems to create a difficulty for the OP view. Clearly, toddlers have a very strong sense of property in favoured objects like teddy bears. If they had access to .45s or AK47s to defend their exclusive rights, they would use them; faute de mieux, they resort to fisticuffs and tantrums. Incidentally, toddlers distinguish between levels of property; the bucket of Lego is mine, but I magnanimously allow you to use it; Teddy is MINE and don’t you dare touch him.

    Now where is the state in all this? It doesn’t really see toddlers as direct subjects, except in cases of custody disputes. It will intervene ineffectually to protect property in teddy bears against remote threats of kidnapping by strangers, but not against those who are actually likely to challenge it, parents, siblings, playmates and teachers. It doesn’t look like a right granted by the state. Nor is it created à la Locke by transformation of nature by labour. It looks to me more like “an instinct to acquire an art”, as Darwin described human language ability. The art here is law.

  21. February 20th, 2015 at 02:38 | #21

    Some contrary thoughts inspired by the general topic.

    I cannot claim that it is true, but the indigenous Australian nations probably thought the notion of the ownership of nature was ridiculous. I am further guessing that their laws enabled them to live in harmony within their groups and between them. As with all things human this was not ideal, but things worked well enough to allow survival. In such an environment organized aggression to steal the resources of others may not have a dominant characteristic, although clearly the armed resistance to the invaders in some places does suggest different cultures existed. I suspect this Australian history is mostly unwritten. Much of the oral wisdom record may have been lost.

    To anticipate a general counter argument, it might be observed that not all technology and social organization that it gives rise to, primarily either as creating systems of food production, surplus value and war is intrinsically violent. Gunpowder and the compass were originally gifted to the invaders of the continent. When combined with the development of sailing ships as a state enterprise led to the invasion and the dispossession of the indigenous people, who were more accurately described as trustees of the land, rather than owers.

    The driving force of the carnage was also a product of the invented magic of double-entry bookkeeping with the reified, venial materialist urge to get more stuff, for which overt and hidden structural violence were both ends and means. The combination among the Europeans can be understood as structural violence, expressed as violence on the indigenous peoples and others peoples around the world.

    To a sane culture such social developments would be seen as psychopathy. Law is a moral order of a good society, or the expression of violence. It is the quality that is lacking and needed if the fair go is to be extended to all and for the ecology to be protected to allow continuation of worthwhile life in the world.

  22. Morgan Warstler
    February 20th, 2015 at 04:10 | #22


    hegemony: watch deadwood which covers the subject spectacularly. Or study the day after the fall of USSR.

    Here’s a quick sketch: 70% of Americans will spend one year in their earning life in the top 20%, that’s probably not quite a enough, but you are definitely close. By the time you have the top 40% (remove any dogmatic public sector employees), you are looking at a solid hegemony.

    These are people that have 300M guns, and will put heads on spikes, if you even try to mess with “govt is here to make sure you own title on your shit” Why do you think Zombie movies are so popular?

    Pretend USG goes rogue to take on top 40% property law for social justice, and soldier and cops look over that this Group A, and think THESE ARE THE GOOD ONES they look at the other screaming hordes and say FIRE. Where literally the chain of command breaks down and the dog knows who the real master is.

    Look, this stuff is intuitive. Why does the left not have a Tea Party? Because one side has the actual raw power to have one – it is RIGHT THERE IN PUBLIC FOR EVERYONE TO SEE: Asymmetric power dynamics, privilege, class – MY KIDS GET BETTER THAN THOSE OTHER KIDS BC I”M IN POSITION TO DELIVER IT, I’M MORE VALUABLE. This isn’t rocket science, just stop theorizing and look around.

    The American System: is not a parliament. Has incredible state’s rights, has diabolical checks and balances that lead to binary A / B party choices with very little difference between them. The Fed is not run by treasury. Literally in 1913 – we’re going to get an income tax, and BAM same year, Fed Bank starts running money supply, to keep USG in check.

    These are not ‘corporate” interests, this isn’t about “big money” – it’s not 99 vs 1. It’s about a A power (Top 40%+) being 50% of votes and having the most money. The B power (the elites) having money and no votes, and C power having just half the votes and no money.

    The A power runs the churches, the PTA, controls every small town and all the red states, and the B and C power hold the coasts and clamor for more C voters to move here.

    (The sad fact is we can easily guy the elites, if you just ACCEPT that the will of the hegemony is supreme, and craft deals from the C power to let A power molest B player – taxes that crush .1% and ALL the booty goes to top 40%. and overnight it passes! Somebody needs to wake the Dems up that they are the weakest player in a 3 player game, so they can act like China in cold war.)

    My point is ultimately there is no “state” there is the will of hegemony. You can dismantle rule of law by imaginary fiat in a blog, and it will crop back up.

    The only way you can, as a policy thinker, go “there” is when you first go out in the street slit some throats.

    This is an ethical argument about the moral obligations of the speaker. If you are preaching for a plan will wake a giant and it will turn on your audience and DECIMATE THEM, well I think you ought to tell your audience:

    “WARNING! If we actually go after their property, you and your bloodline will likely be ended. Now who is with me!”

    Property is the home team. Dug in fortified, with supply lines and weapons. And “anti-property” is a headline progressive bloggers argue for, to gain a readership of havenots, until they can get trade that readership in like skee-ball tickets, for a real job and then argue for neoliberal market reforms. See Vox.com

    BUT! this is all good news, bc once you accept that hegemony > state, you can start to THINK solely about the policy ideas that the top 40% will ACCEPT.

    They are a pretty fair minded bunch, once you get over the Mine shit is mine stuff.

    They like digtial shit all being free! And everyday more shit is digital than atomic. They will happily automate the state into mobile software, and use the savings on buildings and public sector labor to give more wage subsidies to the poor.

    They will help you gut the elites, if they get to keep the spoils. And THEN, the 40% have more money to go spend on low skill labor, personal services etc.

    I hope this explains the hegemony to you. I’ve been called a “Darth Vader marxist.” bc I accept nature of the system, I just realize that the technology ensures the petite bourgeoisie are in guys in control, and I LOVE it. Marx missed it. Once brains (human capital) became the means of production – meritocracy is a fact – bc thats how networks operate, it can’t be stopped.

  23. TerjeP
    February 20th, 2015 at 08:09 | #23

    According to the JQ definition an illegal stash of cannabis isn’t property. Yet it trades like property. Is defended like property. Is recognised by others as property. And try taking it and you will be called a thief and treated as such.

    Nearly any three year old will quickly learn to say “mine”. Later they learn the essence of property when they learn to say “yours”. Like language property emerges from interactions between people and the institution of government is merely one of many factors influencing the situation.

  24. Uncle Milton
    February 20th, 2015 at 09:12 | #24


  25. Uncle Milton
    February 20th, 2015 at 09:14 | #25

    The classic text, of course, is Proudhon (1840): What is Property? An Inquiry into the Principle of Right and of Government.

  26. Nevil Kingston-Brown
    February 20th, 2015 at 09:29 | #26

    Pulling rank here, I actually do have a PhD in anthropology, and so for once I know more about something than mine host! From that perspective, I’d recommend Gregory’s “Gifts and Commodities” and “Savage Money” as the go-to sources on this question.
    Also, in what is possibly another first for me, I’m going to agree with TerjeP – “property” is an emergent institution. (Of course, so is Government – a contention he may not agree with.). But despite JQ’s early definition of his terms, part of the confusion here is that the definitions are still far too broad.
    For example, “property” in the sense of land that belongs to my clan (or, given the way it is often expressed, my clan that belongs to the land) is commonly found in acephalous (stateless) societies, and will be defended by force from incursion by other groups.
    Evans Pritchard’s classic work on the Nuer in Africa said that societies like this maintain a balance without falling into Hobbesian “all against all” by cooperating or competing/clashing according to degrees of connection and reciprocity “Me against my brother, my brother and I against our cousins, the whole family against that family over there, all our families against the clan from the next village, all our villages against the external enemy” (given the context, he didn’t explicitly write that the external enemy was “the British”).
    However property in land in stateless, clan/family based societies is almost always inalienable. There is no way within the system of thinking and governance for land to be “bought” or “sold” in exchange for anything. Land is transferred around as part of patterns of marriage and inheritance which are usually “designed” to preserve a fairly equilibrium distribution of resources and enable everyone to have enough to eat (this is not necessarily an egalitarian distribution). The only way land could be alienated would be through conquest.
    This has been an endless headache to the World Bank and other “development” agencies who are constantly trying to get subsistence peoples to define, register, mortgage, buy, sell, etc their land in Africa, Asia and Oceania (and here in Australia), and finding that the whole idea is completely impossible within the categories of thinking about land, never mind within the customary law system.
    There are, however, commonly usufruct rights where the use and fruits of a piece of land can be gifted or transferred, hence the popularity of 100 year leases with development/state actors as a development pool as a way of bringing traditional land into commercial land markets.
    Alienable land is largely a product of states and the tax system – although David Graeber has copped some justified criticism with his descriptions of the current world economic system and mistakes about medieval history, he is spot on with current archaeological/anthropological thinking about the emergence of states. Land markets emerge at the point of a gun, when people have to turn their land into money to pay taxes, or face imprisonment/drafting/death.
    When it comes to non-land property, e.g. food, or fishhooks, or clothing, trading relationships are very common, state or no state, and as terjeP says, theft will be punished, either by the victim on the spot or by the victim’s clan going to war against the thief’s clan. However, again the concept of “alienability” very rarely enters into it. Take Malinowski’s famous Kula ring: Pacific Islanders mounted extensive trade expeditions to each other’s islands to swap prestige goods, but every one of those goods had a known history, and by acquiring it, you formed a social connection with all its previous “owners” which could be drawn on for marriage exchange, loans of food, access to fishing grounds, etc. The idea that something you made ever ceased to be part of you, in some sense, is very rare in non-state societies.
    In some areas of western societies this consciousness persists. For example, the image of the starving artist whose work sold decades ago for a pittance and is now worth millions seems intrinsically unfair to most people, even though it is entirely legal and in accord with our property norms. We feel that a work of art has some kind of special connection to an artist which should mean he/she shares in “its” prosperity. In most stateless societies, every made object is in this sense a work of art. Exchange happens through means of gift giving and expected reciprocity, and gifts have histories and create social connections. The only time there is “trade” in the sense we understand it is with complete strangers, and there aren’t that many of those (this is the origin of the story of the Arabian Auction.)
    Incidentally, this caused a lot of problems for European explorers of the pacific who wanted to trade with islanders for food. In many places, the locals were happy to give gifts, but only of spears (because spears are what you throw at strangers). I’m not euphemising, they would offer a big bundle of spears as a gift, or in exchange for european goods, e.g. cloth, tobacco, etc. However, they refused to trade for food, because exchanging food created all sorts of social obligations on the receiver and giver, and since they figured that these strangers would disappear over the horizon as mysteriously as they had appeared, it stood to reason that the Europeans would not hold up their end of the social bargain.

    To summarise: The ideas of alienable property in land and other objects, and money and markets as a universal solvent which allowed anything to be exchanged for anything as a one-off transaction without creating a binding, ongoing set of social relations upon the participants are very much a product of states. The idea of inalienable property in land, usually belonging to a family/clan/lineage, is not a state product, nor is the idea of semi-alienable restricted exchanges within a customary framework, but that framework has radically different ideas about the whole notion of “property”.

  27. Julie Thomas
    February 20th, 2015 at 09:32 | #27


    “Nearly any three year old will quickly learn to say “mine”. Later they learn the essence of property when they learn to say “yours”.”

    Children only learn this way of behaving in environments that emphasise private ownership and rights over negotiated ownership and responsibilities.

    There are cultural differences between rich and poor families in the way they raise their children and there are cultural differences in the way that particular male and female attitudes toward ownership are encouraged in children; these cultural practices ‘nudge’ or even radically alter the way the child’s genetic inheritance is expressed in the personality and cognitive style and behaviour that you are seeing.

    Being poor creates an environment in which sharing is emphasised and rewarded and people who are socialised in this way of being and living do not do well when they enter the competitive individualist values that are emphasised in your culture.

  28. Ivor
    February 20th, 2015 at 09:43 | #28

    Is property such an issue? Surely it is what you do with it, that is the problem?

    Cooperatives can have different forms of property – some private, some communal, without causing problems or issues.

    I don’t know why Jack Strocchi cited some “Lockean idea of original appropriation” when our modern society is better described as based on earlier “Robber Barons”.

    As I understand Australian, American and Canadian (and New Zealand) history, this was also the basis of their colonial regimes – Robbers.

    Robinson Crusoe also had property without raising issues (ignoring Friday).

    As Marx would have said, property is only a problem when it becomes a social force.

  29. Julie Thomas
    February 20th, 2015 at 10:41 | #29

    The local hall that was given to ‘the community’ is causing a problem in our town now because there are not enough people who do community stuff any more; the really old people who remain on the committee do not know what has happened and why nobody wants to do these community things now-a-days.

    There are a lot of these community owned halls and they can’t be sold without Council making changes to the way land is registered – or something like that anyway and of course that takes money and effort to get these changes happening and who does that and who gets the profit?

    Councils have no money to preserve these halls or the other old buildings that are being sold to people as private homes or businesses. Not that this is a problem, it would be totally fine with me if someone bought the hall and turned it into an art gallery or something but that won’t happen because there isn’t enough money or tourism out here, yet.

    But there could be and it seems short sighted of councils not to see that these buildings have the potential to be assets for the community in many ways.

  30. Ernestine Gross
    February 20th, 2015 at 10:52 | #30

    According to TerjeP, ‘property’ is an idea (and not an object). It is a learned idea and not innate. It is an idea that requires the existence of at least 2 humans (paragraph 2). But if ‘property’ is not an object (but an idea) then cannibas, contrary to his assertion (paragraph 1), is not ‘property’. (Contradiction)

    How can higher education help to sort this out?
    UTS is offering a new applied course, named Bachelor of Property Economics. UTS is located in Sydney. I have already said what the meaning of the word ‘property’ is in Sydney. What is this study program about? Lets have a look.


    As far as I can tell, the content deals with the commercial (finance and accounting) aspects of real estate transactions under different juristictions. I don’t know whether Locke will get a mention.

    In this specific case it is quite clear that ‘property’ is not an idea but an object but ‘property rights’ (the right to buy and sell property) depends on rules and associated procedures under the control of institutions other than the owners and they may differ across ‘countries’ (with governments).

  31. TerjeP
    February 20th, 2015 at 12:45 | #31

    This has been an endless headache to the World Bank and other “development” agencies who are constantly trying to get subsistence peoples to define, register, mortgage, buy, sell, etc their land in Africa, Asia and Oceania (and here in Australia), and finding that the whole idea is completely impossible within the categories of thinking about land, never mind within the customary law system.

    Tim Wilson (Human Rights Commissioner) has been in the press in the past week talking about this issue. FYI.

  32. TerjeP
    February 20th, 2015 at 13:01 | #32

    Being poor creates an environment in which sharing is emphasised and rewarded and people who are socialised in this way of being and living do not do well when they enter the competitive individualist values that are emphasised in your culture.

    This isn’t what I observed when I volunteered at a soup kitchen. The homeless men that came to receive a free meal were a diverse crowd and certainly not all the same. That said the amount of pushing, shoving, spitting, and fighting was quite disturbing. Obviously people behave differently when they are desperate but the behaviour was not confined to before eating but continued afterwards.

    Having a young relative that was for a long time homeless my observation was that a lack of empathy and a lack of generosity of spirit can be mighty effective at making you poor. And being poor does not make you more compassionate or loving towards others. In the extreme it can make people into brutes.

    Of course amoungst the wealthy people that I have known there are some jerks. And I know some poor people who are angels. But the pattern seems to be that wealth makes you more relaxed, easy going and generous in your dealings with others. Of course a lot depends on the stakes so it may just be that a loaf of bread is more trivial to a rich person and not worth an argument whilst for the poor it is different. In any case the behaviour I have observed is not consistent with your claim. Rich kids may have less need to share but the idea of sharing isn’t unique to poor people. It’s just exercised differently. Travelling in poor countries I don’t sense that the kids are less selfish than kids in developed nations. Though they do set their sights and expectations differently.

  33. Ikonoclast
    February 20th, 2015 at 14:50 | #33

    Without specialist knowledge (historical, anthropological or philosophical) I must start were I am. I take existing property relations in contemporary Australia as a realpolitik given. I might or might not agree or disagree about aspects or even foundations but I take them as a realpolitik given. To expand on that, I take them as an emergent and ever-emerging given. I also take them as workable, “good enough” and maybe even more or less just or equitable for the majority for the time being. Remember, a majority is anything over 50%.

    Equally, I can and do hold that there is a sizeable minority for whom existent property relations are not just (not equitable enough). Equally too, I can and do hold that our existent property relations, especially ownership of the means of production, are leading us ever deeper into certain sorts of serious and even catastrophic problems.

    Thus I hold that property relations, for a large society, are an extensive and complicated practical problem with many ramifications. Property relations are what can be called a “wicked problem”.

    “A wicked problem is a problem that is difficult or impossible to solve because of incomplete, contradictory, and changing requirements that are often difficult to recognize. The use of term “wicked” here has come to denote resistance to resolution, rather than evil. Moreover, because of complex interdependencies, the effort to solve one aspect of a wicked problem may reveal or create other problems.” – Wikipedia.

    As property relations for a complex and extensive society are a wicked problem or even a great set of wcked problems, the “ever-partial” (in both senses of the word “partial”) solutions, negotiations, compromises etc. do and will always have to found in political praxis. Political praxis can endeavour to be guided by theory, be it political, ideological, theological, philosophical theory etc.

    I would simply caution that I think it is very unlikely that a neat philsophical solution will occur to anyone and be accepted by everyone, or even some good majority of everyone. In other words I think no neat philosophical solution will ever solve the entire wicked problem. In a lot of cases of real world complexity, I think the empirical leads the philosophical. That is to to say in these types of cases, the masses of people (allowing for greater and lesser influence of different individuals and classes) work out a functional or dysfunctional compromise. Then the ideologues and philosophers came along and theorise about it and some of this theory can legitimise and/or feed back and modify existent relations.

    I have never understood Marxist dialectical materialism but if the above is something like dialectical materialism then I must be a kind of dialectical materialist at least on the topic of property.

  34. Michael
    February 20th, 2015 at 15:34 | #34

    Having recently read Sheila Newman’s book, ‘Demography, Territory and Law: Rules of animal and human populations’, couple with my limited experience in Kenya and in indigenous Australia, family-inheritance appears to be the default of land ownership (where people stayed in the one location) or of land identification and territory claim (where people were nomadic). The current system of land ownership, with the comodification of property, strikes me as somewhat of a perversion, particularly now in Australia where GDP is now largely generated by a complex ritual on speculating on property prices, and viewing land as a profit asset rather than a place to live.

  35. Jim Birch
    February 20th, 2015 at 17:33 | #35

    I think that property arises at a more fundamental level as a consequence of game theory in biology. In non-human animals there is an absence of narratives so things are quite different, but the basic impulses that make property intelligible to humans are fully present.

    In Robert Sapolsky’s book on stress he presents us with a simple picture of an unhappy baboon. At first looks, it seems to have been dropped in to the text almost at random. There is no action, just an ape, perhaps looking slightly listless. IIRC the caption explains that the baboon – who I will call Oscar – has spent the better part of the morning tracking a small rat-like mammal then digging it from its burrow. It represent a significant amount of nutritional value (f) for Oscar. Upon retrieving and killing the unfortunate creature, it was summarily taken for Oscar – can I say stolen? – by a larger baboon who we will call Andrew. Andrew is not in the photo, he is presumably off somewhere eating breakfast.

    From a game theory point of view, Oscar’s loss is not just today’s lump of meat of value f but is significantly more since the act may be repeated many times. Andrew is developing a new and efficient way of getting fed. When threatened with the loss, the Oscar should, according to my reading of game theory, treat the potential loss as a large multiple of f, say 10f, something really worth fighting for. Of course, Oscar won’t be actually crunching numbers but evolution will have provided him with an adaptive emotional value for the food that adds an invisible “aura” to the food. I am proposing that this aura, that exists in the mind of Oscar is proto-ownership. It is clearly not a real property of the object in question. And, Stand-over Andrew should have a built-in aura generator too, he is not going to get a fight for f but for 10f so needs to be appropriately dosed up with adrenaline.

    Of course in humans, this invisible non-existent aura would be verbalised as ownership; as we commonly hear “He stole my rat!” Ownership is of course a mythical property which is assigned to real world objects but we all understand it intuitively.

    To my mind, this model breaks the logical nexus between property and government. Government can provide enforcement of property rights but the psychological notion of property is prior, arising when you have, or believe you have, a secured control over some useful object. This could be for any number of reasons, you grew it, you caught it, you paid for it, you get it every week, everyone deserves some, you invented it, and so on. Humans have an almost infinite capacity for inventing such reasons. It also shows why a clear system of property right is required to maintain civil society: if society has a total ownable value of x you could have a level of disputation appropriate to the value 10x secure it. To me it also suggests that we should be cautious with the creation of property rights or even rights in general. They are totally fictitious, so can be created from anything or nothing, they will then develop a life of their own, irrespective of their actual utility.

    Where I would agree with the notion of property arising from government is in enforcement. Until a right is enforceable is is just chatter, another nice idea.

  36. Julie Thomas
    February 20th, 2015 at 17:36 | #36

    Terje you are a shameless free rider. You come here with your ignorant judgemental assumptions and hope to be educated for free.

    There are studies that show that rich people are far less generous than poor people. One way that this is obvious is that contrary to the white man folk psychology that you depend on for your knowledge of human nature that says that when rich people pay less tax they give more to charity and support the community, that hasn’t happened.

    So your right wing simplistic folk psychology is rubbish. Just read a first year psychology text book and educate yourself.

    The rich are also more badly behaved in traffic and in other ways demonstrate that they really do think they are better than poor people and deserve more from the world; just as you do.

    The beaten and damaged men that you so kindly helped at the soup kitchen are not the poor who raise children that don’t want to compete in your cut-throat world of guns and freedom to hate speech.

    Those are the beaten and downtrodden, the people destroyed by the politics of resentment and the use of the stick to force people to behave the way you want us to, policies that you have supported.

    Your polices and the attitudes that have subsequently developed in our country are the reason for the behaviour that you so stupidly judge from your smug ugly position of superior ignorance.

    From my experience with these men and women, I suspect that if they noticed you they would have thought you were a jerk and probably tried very hard to make you more uncomfortable than you already were. They do that to fake people like you.

  37. jungney
    February 20th, 2015 at 17:52 | #37


    I don’t know why Jack Strocchi cited some “Lockean idea of original appropriation” when our modern society is better described as based on earlier “Robber Barons”.

    I do. Locke was the archetype of the modern robber baron. In writing his ‘Two Treatises on Government’ he ignored all sorts of evidence that Native Americans did have a form of property in land, that they tilled it, irrigated it and built fences. Now, when he came to theorise the historical fraud of “original appropriation ” it was against a background of his service as Secretary to Anthony Ashley-Cooper, 1st Earl of Shaftesbury, who, or whose heirs controlled, the Province of Carolina from 1663 to 1729. This was just one of the Southern colonies amongst in North America established by Great Britain during the 16th and 17th centuries. Others were Maryland, Virginia, North Carolina, South Carolina, and Georgia. The colonies were originally instated to compete in the race for colonies in the 15th, 16th, and 17th centuries. They then developed into prosperous colonies that made large profits off of cash crops such as tobacco, indigo dye, and rice.

    (paraphrased from wiki-p).

    Published in 1689, the ‘two treatises’, in particular the second, described North America as a cornucopia of forests, rivers, lakes, seas, unending prairies and wildlife, passenger pigeons in such numbers that they ‘darkened the skies with their numbers’, as did geese and ducks and numerous other birds etc and so on. He described hat he saw.

    Unfortunatley he failed to see the complex land management techniques that Native Americans used which, had he acknowledged it, would have forced him to accept that the Native Americans did indeed conform to his formula for recognising rights of ownership in land. This went along the lines of visible evidence of the owner(s) having mixed their labor with the land – tilling and fencing were especially significant.

    So if Strocchi puts Locke on a pedestal he is only keeping the fiction of European land theft alive, much like other idiots who are ignorant of the full history of the political philosophy they espouse. Locke was a major shareholder in the colony he administered. Of course he didn’t see any evidence of prior ownership of the colonies by Native Americans. If this sounds familiar, it should. It is pretty much the precursor to dishonest appraisal of Australia as terra nullius.

    There was even an attempt to set up what we term a bunyip aristocracy:

    The Fundamental Constitutions of Carolina sought to ensure the colony’s stability by allotting political status by a settler’s wealth upon arrival – making a semi-manorial system with a Council of Nobles and a plan to have small landholders defer to these nobles. However, the settlers did not find it necessary to take orders from the Council.

    What a surprise.

  38. jungney
    February 20th, 2015 at 18:04 | #38

    Tim Wilson and the IPA are on a hiding to nothing with this. Native Title is not, nor will it ever be, converted to something like Torrens Title. It was specifically designed to be non-convertible. That’s the point of Native Title: it recognises another form of title than individual property. Moreover, the only institution in Australia capable of adjudicating attempts to change the meaning of Native Title sit on the bench of the High Court. They won’t accept Tim Wilson’s puffery as substantial legal argument. Never. The HC is very proud of Native Title, reasonably so, and will defend the thinking of the court at every turn.

  39. Ikonoclast
    February 20th, 2015 at 19:17 | #39

    @Jim Birch

    “I think that property arises at a more fundamental level as a consequence of game theory in biology.” – Jim Birch.

    Just as a quibble, it does not arise as “a consequence of game theory”. I think you meant to say it arises as a concequence of phenomena in biology which might be modelled to some extent by (human) constructed game theory.

  40. Ikonoclast
    February 20th, 2015 at 19:44 | #40

    @Julie Thomas

    Sometimes (maybe even often) I strongly disagree with Terje politically and socio-politically but I try not to get too personal. I don’t know if I am always successful at that.

    Libertarianism is an umbrella term. Terje is maybe a minarchist laissez-faire libertarian. Someone of more traditional left-right politics (like me) can, from such a perspective, find some libertarians have seemingly odd and disparate positions. Some parts of their position look very good to me and some parts look terrible.

    Their tolerance on personal liberty issues can be high which I often but not always agree with. On the other hand, the minarchist laissez-faire libertarian prescriptions for property and economics seem enormously naive, miscontrued and even socially dangerous (at least to me) and lead, I would argue, to the kind of US we see today (highly inequitable) and likely even worse extremes in the future in terms of inequity and injustice. I think in economics such libertarians are highly misguided (my judgement of course) but not intentionally malicious. There are various kinds of extreme right wingers and extreme left wingers who are malicious and repressive right across the board. Terje is not any of those.

  41. Ivor
    February 20th, 2015 at 20:22 | #41



    Locke “robbed” the product of his servant’s labour.

  42. Julie Thomas
    February 20th, 2015 at 20:27 | #42


    No he is not malicious but the effects of his lack of malice are not good for anyone and a this lack of malice is not anything to be admired imo. Terje lacks a lot of things -not just malice -that some of us take to be requirements for decent people.

    I didn’t realise I was being personal; it was Terje who introduced his own personal experiences as some sort of argument to justify his position relative to the other humans including a member of his family that he apparently believes just chose to have a bad personality and be homeless.

    Probably I am showing too much the contempt I have for the inadequacy of his achievements in life and his failure to see this inadequacy. I was intending to cease and desist being so off-topic. 🙁

    As far as the much vaunted socially liberal position that libertarians claim; it seems irrelevant since they would never vote for social freedoms rather than more and more economic freedom.

    Here is another song for freedom

  43. Ikonoclast
    February 20th, 2015 at 20:53 | #43

    @Julie Thomas

    Yes, so much misery and so little true happiness in the entirety of human history. I do wonder if it’s all worth it. Of course happiness is the wrong thing to seek. “Occupation” is the thing to seek meaning absorbtion into a task, activity, vocation, craft, art, hobby, pastime, profession, metier, etc. Oh, and usefulness is very important too; being useful to others especially in being able to ameliorate suffering. Happiness is transient but suffering can be very persistent.

  44. Ikonoclast
    February 20th, 2015 at 21:51 | #44

    Footnote to above post: I like the “doomy” mood of the backing music. The husky, well-used night-club voice of the mature Marianne Faithul is growing on me too. Then there’s a little bit of a funk in the instrumental interludes (just right, a little funk is good but not too much). Great lyrics by Lennon too, of course. Plenty of irony as Lennon was a working class hero who got to live on the hill.

    Strangely (or not), from footage I have seen of Lennon he could be a decent chap. Saw some footage of Lennon interacting with a nutter (psychotic or drug-addled) who got into Lennon’s grounds and then was invited into the kitchen of the mansion with Lennon there. The guy was carrying on a treat and Lennon was like “Hey man, have you eaten? Do you want some food?” Then the interloper was expounding his (crazy) theories of all the deep meanings in Lennon’s lyrics. Lennon said something like “No, it’s just playing with words. I’m just playing with words.”

  45. TerjeP
    February 20th, 2015 at 23:01 | #45

    On the other hand, the minarchist laissez-faire libertarian prescriptions for property and economics seem enormously naive, miscontrued and even socially dangerous (at least to me) and lead, I would argue, to the kind of US we see today (highly inequitable) and likely even worse extremes in the future in terms of inequity and injustice.

    The US we see today does not practice minarchist laisse-faire libertarian prescriptions for property and economics much at all. They seem quite authoritarian.

    The Heritage Foundation Index of Economic Freedom rates Australia as more economically free than the USA. On the specific issue of property rights under the heading “rule of law” it gives Australia a score of 90 whilst only giving the US a score of 80.


  46. TerjeP
    February 20th, 2015 at 23:19 | #46

    There are studies that show that rich people are far less generous than poor people.

    Giving charity to strangers and being a person that readily shares with siblings and associates is not quite the same thing. You could claim that the former is a proxy for the latter but how do you know it is actually a good proxy?

    If a bunch of people were cast adrift in a lifeboat with limited supplies and and an uncertain future and amoung them were some that grew up in a rich home and some a poor home I doubt that the former on average would be more antisocial as companions. Other factors such as innate personality and temperament would be more significant. However if there are studies that show otherwise I’d be keen to see them.

    However I’m not claiming that rich people give a greater proportion of their income to charity. They may indeed give less.

  47. zoot
    February 21st, 2015 at 00:04 | #47

    Just an observation from my father, who spent many years as a fundraiser for various worthy causes: people who live in the “better off” suburbs are much less likely to donate than those in the “poor” suburbs. Yes, it’s anecdata, but his proven strategy was to avoid the wealthier areas of the metropolis and concentrate on the less well off.

  48. rog
    February 21st, 2015 at 05:50 | #48

    From my limited knowledge the essential difference between indigenous and Western views on property is that the West believe that property is owned by the individual whereas the indigenous believe that the individual is owned by the property. Aborigines believe that everything comes from the country, including Landcruisers, and that they are custodians, not owners.

    I also understand that when aborigines travel they must ask permission to enter lands under the control of the custodian, not the owner.

  49. Julie Thomas
    February 21st, 2015 at 06:26 | #49

    It seems that the Terjud libertarians are looking to Rand Paul as a model for how to take advantage of the current movement of the people toward the left.

    This shallow and opportunistic support for freedom is just a front for the self-interest that is so improperly understood by those who think that Elton John is up there with Adam Smith.

    Perhaps the people on the right cannot do solidarity like the people on the left because they do have a belief that there are two types of people, like ‘the goodies and the baddies. They don’t care to understand how people get to be baddies; the solution always is to concentrate on their ‘good’ people like them and give these people all the support they need and more; the poor who are always with us should just go away with their nasty ways and bad behaviour and die somewhere out of sight.

    Yes I think that John Lennon was a major intellect and his cross-cultural experience – going from poor to rich – experiencing the very real differences in attitudes and behaviours that are so evident between rich and poor families – added to his ability to psychoanalyse himself and see the changes in attitude that wealth did create in him, and from there he was able to understand others and not judge them on the assumption that he succeeded because he was a better person and deserved his success.

    What do you think Terje is wanting here? He only does things in his self-interest and his self-interest is not mine. It is like that other song that goes “everything that makes him rich makes me poor”.

  50. Ikonoclast
    February 21st, 2015 at 06:35 | #50


    When things arise, there are not laws against them. By this I mean, that a true innovation in human behaviour or organisation is not proscibed by law because it was unimagined, undeveloped and indeed non-existent before it arose. Thus there cannot be a law designed in particular to proscribe it or regulate it. Admittedly, other laws might accidently, fortuitously or unfortuitously have a bearing on it or be amended or interpreted to cover the case but even the case of an amendment or change in interpretation is a new and emergent law change, a reaction, provoked by the innovation.

    To repeat. A true innovation in human behaviour, invention or organisation in society is not proscibed or treated by law because it was unimagined, undeveloped and indeed non-existent before it arose. Thus a true innovation encounters a default laissez-faire position. When laissez-faire capitalism first arose it ecountered a default laissez-faire position regarding at least some of its operations and the practices it developed. The industrialisation and intensification of child labour in the factory system is but one example.

    In short, the early conditions of laissez-faire Capitalism are diagnostic of the natural inner tendency of laissez-faire Capitalism. I suggest you read from William Blake through to Dickens and Friedrich Engels. Have a look at what happened and happens in places like the Apple factory in China and factories in S.E. Asia, garment shops in Bangladesh, child labour in India. The freedom to export capital to manufacture with lower (subsistence) wages is scarcely comparable to the “freedom” to be exploited on those subsistence wages.

    The USA has indeed proceeded a long way down the path of crony and monopoly capitalism. They are indeed in a worse situation than that situation where all capitalists and entreneurs compete more or less fairly before a great excess of cronyism and monopolism arise. It is this latter situation that your source from Heritage Org posits as freedom. But it is only the freedom of capital (and capitalists) which is truly predicated by Heritage. The claims about freedom for the worker at the same time are fake and thrown in as window dressing.

    The time and place where capitalists competed with each other fairly is probably semi-mythical. I mean this in the sense that cronyism, lobbying and influence must always have existed. On the other hand, a general and genuine non-monopolism arguably existed in the early development of capitalism. When minarchist libertarians talk about the freedoms of people in the economic sphere they are essentially, in this system, talking about the freedoms of already wealthy people and the freedoms of the rare clever and lucky entrepreneur to become wealthy. They are talking about the freedom for inequity to increase. The data in Piketty’s work shows this trend.

  51. TerjeP
    February 21st, 2015 at 06:36 | #51


    Is this yet another attempt to make this personal? Grow up.

  52. Geoff Edwards
    February 21st, 2015 at 06:37 | #52

    This debate was in front of mind at the foundation of the American republic. Bentham’s view that property “rights” derived from the state prevailed over Locke’s view that property was a natural right. “Property” was omitted from the list of fundamental rights: “Life, liberty and the pursuit of happiness” in the Declaration of Independence.

    At the time of a vigorous debate in Queensland over the right of landholders to compensation for the removal by legislation of their “right” to clear vegetation (2002), I wrote a departmental paper exploring these issues. This is available online: http://www.isaa.org.au/articles?pg=2

    In short, I agree with Prof John’s logic. The modern state is successor to the traditional elders; property rights nowadays are those that the state chooses to enforce; the state can create property out of nothing (e.g. intellectual property); some commons regimes (like fish) are not so much natural rights but property rights that the state chooses not to enforce; Garrett Hardin in “Tragedy of the Commons” (1968) misunderstood the feudal commons as unmanaged; even a supposedly entirely private contract is underwritten by the state as contract law can be invoked if a party defaults; in Australia at federation the six States retained control over property leaving the Commonwealth a very limited role (federation wouldn’t have happened otherwise); and the colonies inherited Australia’s property from the English monarch who obtained it by conquest from the previous owners.

    A similar line of argument can be advanced to demonstrate that “markets” do not exist, even in the traditional village, outside the rule of law, so the whole concept of “government invention in the market” is a nonsense, as modern markets don’t exist without public institutions – contract law, currency, prudential regulation, property law etc.

  53. TerjeP
    February 21st, 2015 at 06:43 | #53

    The USA has indeed proceeded a long way down the path of crony and monopoly capitalism.

    Crony capitalism by definition is not laissez-faire capitalism. Crony capitalism entails the government taking actions, whether through legislating special rules or handing out selective subsidies, to protect the interests of certain producers over the wider interests of society.

  54. TerjeP
    February 21st, 2015 at 06:49 | #54

    A similar line of argument can be advanced to demonstrate that “markets” do not exist, even in the traditional village, outside the rule of law, so the whole concept of “government invention in the market” is a nonsense, as modern markets don’t exist without public institutions – contract law, currency, prudential regulation, property law etc.

    So the black market does not exist? There is no trade in illegal drugs? That can not seriously be your position.

    Maybe have a look at Yeonmi Park’s speech at the 2014 Oslo Freedom Forum and think about this a little harder.

  55. Geoff Edwards
    February 21st, 2015 at 07:00 | #55

    PS John

    You asked for a pointer to relevant literature. Anything by Harvard Jewish scholar Joseph Singer is worth reading. We should remember that our Australian/English/enlightenment traditions derive not only from Graeco-Roman law but also from Hebrew origins.

  56. Ikonoclast
    February 21st, 2015 at 07:02 | #56

    @Geoff Edwards

    I agree. That is the realpolitik interpretation of the existing state of affairs. We might agree or disagree with the foundation or the details of this state of affairs but it is the existing, extensive and pervasive reality.

  57. Geoff Edwards
    February 21st, 2015 at 07:24 | #57


    TerjeP, of course black markets exist and they are outside the rule of law as the term is understood. The existence of an aberration or an exception does not disprove the validity of the model. Indeed, in one sense it supports my model, for black-market goods exchanged under cover of darkness are in principle not actually “property”, as evidenced by the fact that the state can seize them without compensation.

    The lecture by Yeonmi Park also doesn’t disprove my model – I’m not sure what it proves, except perhaps that the freedom of exchange within a private or community market is a domain separate from political freedom of expression. Private markets do not necessarily give rise to political freedoms. Across the globe, there are all kinds of hybrid systems.

  58. Julie Thomas
    February 21st, 2015 at 07:44 | #58


    Terjebots is probably a better term but calling you descriptive names is not particularly personal. Ridicule is an effective policy for the politically powerless. And there is a need for some attempt to categorise your type of ‘libertarian; the list you provided as a guide to what sort of libertarian you are was not particularly helpful for those of us who see a need for consistency and integrity in one’s political philosophy.

    You really do need to learn to ignore me and not bite back. That would be a grown-up thing for you to do. Did you know of the old saying – and often it seems to me that psychology verifies these old sayings but places them in a context in which the dynamics can be made explicit – that goes; the faults you see in others are yours?

  59. Ikonoclast
    February 21st, 2015 at 09:24 | #59

    We need to be aware of the various distinctions which can be made between “personal property” and “private property.”

    Legally, “Personal property is generally considered property that is movable, as opposed to real property or real estate.” – Wikipedia.

    In a socialist view, personal property involves those “items intended for personal use,” (e.g., toothbrushes clothes, homes, and vehicles). So in this view, some real property (a home) can be personal property.

    “Private property” is a social relationship between the owner and non-owners. Thus private property is not a relationship between a person and a thing. Private property is a social institution ruled by law, now state law, and governing relationships between persons.

    “To many socialists, the term private property refers to capital or the means of production, while personal property refers to consumer and non-capital goods and services.” – Wikipedia.

    It is clear that socialism or some important variants of it envisage the retention of personal property but a change in the laws and institutions governing private property relations. The dividing line runs between property that used as a means of production and property that is personal property and a mode of consumption not a mode of production. If everyday parlance, if one uses property, especially real property like a factory, to make a profit AND this involves employed workers other than oneself then it is NOT personal property in the socialist sense. It is or should be cooperative property, communal property or state property in the socialist view.

  60. David J Parry
    February 21st, 2015 at 10:08 | #60


    I’m not seeing how deleting the concept of private ownership is a win for anyone

    I’m not aware that anybody on here is arguing against the concept of private ownership in the sense of individual ownership of ‘stuff’. I, however, would argue very strongly against the idea that some people’s labour should be the property of others. That would be a win for working people, surely?

  61. Will
    February 21st, 2015 at 13:14 | #61

    Libertarian ideology is silly. By any libertarian measure of property ownership (conquest/homesteading/populating etc) the Australian government has legitimate ownership of the land. However, they choose to ignore the property claims of the legitimate owner and arbitrarily decide that it’s claim is invalid because said libertarians don’t like the conditions of use of the land as laid out in the current legislative framework!

  62. J-D
    February 21st, 2015 at 13:18 | #62

    Going right back to the very first sentence of the post, I offer tentatively my own view: I agree in regarding as unsustainable the claim that government interference with property rights is inherently wrong, but for a completely different kind of reason.

    To my way of thinking, whether government interference with property rights is right or wrong depends on what sort of interference it is, with what sort of rights, in what sort of property, by what sort of government and in what context. I expect with some thought and some historical research I could come up with some examples of government interference with property rights that were justifiable and perhaps even essential, and other examples which were outrageous atrocities. What I would judge these things by would be the concrete harms and/or benefits to actual people, not the definitions of terms.

    In my life I’ve probably spent more time than the average person in thinking about and discussing the definition of terms, and I still think that can be an interesting and sometimes a worthwhile activity, but I also think it’s important to recognise how easy it is, and how misguided, to be trapped into overestimating the importance of the definition of terms to the kind of subject under discussion here.

    To establish that something is true by definition is only to establish something about how words are used, and that has its uses, but also its limits. Not every real issue can be settled just by defining terms.

  63. Geoff Edwards
    February 21st, 2015 at 14:14 | #63

    Fair enough up to a point J-D, but there is a vulnerability in your argument: Why is your judgement as to “concrete harms and/or benefits” any more normative or reliable than anyone else’s judgement? To overcome the atomisation of society that would follow if we allowed everyone to decide harm, that is, to judge other people’s behaviour, we delegate the task to governments according to law (including common law). If you want something more basic, or if you like superior to governments’ judgement, international law is arguably more normative and averages out individual governments’ idiosyncrasies, but again we leave interpretation of that to domestic governments – back to square 1.

  64. J-D
    February 21st, 2015 at 16:33 | #64

    @Geoff Edwards

    I’m having difficulty discerning whether you’re asking me a question, or in some other way looking for a response from me. There’s no reason why you should be, but if you are, could you provide a little clarification?

  65. Tony Lynch
    February 21st, 2015 at 17:21 | #65


    No, I think the spelling is right.

  66. jungney
    February 22nd, 2015 at 08:28 | #66

    Polanyi argued that the development of the modern state went hand in hand with the development of modern market economies and that these two changes were inextricably linked in history. Essential to the change from a premodern economy to a market economy was the altering of human economic mentalities away from a non-utility maximizing mindset to one more recognizable to modern economists.[5] Prior to the great transformation, markets had a very limited role in society and were confined almost entirely to long distance trade.[6] As Polanyi wrote, “the same bias which made Adam Smith’s generation view primeval man as bent on barter and truck induced their successors to disavow all interest in early man, as he was now known not to have indulged in those laudable passions.”[7]

    Mindful of JQ’s request for readings re the state, and aware that this reference to Polanyi might be like sending coal to Newcastle, nevertheless, his ‘Great Transformation’ remains one of the most compelling accounts of the development of the state:

    The great transformation was begun by the powerful modern state, which was needed to push changes in social structure and human nature that allowed for a competitive capitalist economy. For Polanyi, these changes implied the destruction of the basic social order that had reigned because of pre-modern human nature and that had existed throughout all earlier history. Central to the change was that factors of production like land and labor would now be sold on the market at market determined prices instead of allocated according to tradition, redistribution, or reciprocity.[8] He emphasized the greatness of the transformation because it was both a change of human institutions and human nature.

  67. Hal9000
    February 22nd, 2015 at 10:12 | #67

    There is a distinction to be made between objects and other forms of property, from land to intellectual property. An object can be destroyed by its owner. While land can be degraded, the land itself, as an area of the surface of the planet, will always remain.

    Land is the best example of the OP’s point. When I acquire a block of land, the only thing that physically happens is that an entry is made in the relevant page of a register kept in the land registry of the state or territory. The property rights I acquire are entirely defined by the class of title defined by the law of the state or territory, as further circumscribed by environmental, planning, mineral extraction and other bodies of regulation, and, possibly, by caveats and easements limiting my use of the land. Property rights in land as currently understood are a relatively new invention, superseding feudal systems of quasi-communitarian settlement.

    In short, no state, no land ownership.

  68. paul walter
    February 22nd, 2015 at 11:33 | #68

    I looked briefly at that heading yesterday and it didnt immediately “gel”.

    But when it did hit home a few minutes ago, the roof nearly lifted with my cheer.

    As ever, indebted to Prof Quiggin for putting the horse before the cart on a foundational issue.

  69. Jim Rose
    February 22nd, 2015 at 18:31 | #69

    Central to the economics of property rights is that the definitions of legal and economic property rights really have not much to do with each other. Yoram Barzel defines (economic) property rights as:

    … an individual’s net valuation, in expected terms, of the ability to directly consume the services of the asset, or to consume it indirectly through exchange. A key word is ability: The definition is concerned not with what people are legally entitled to do but with what they believe they can do.

    Barzel’s definition disconnects property rights from any legal connotation. On legal property rights, he says:

    The economic rights people have over assets (including themselves and other people) are not constant; they are a function of their own direct efforts at protection, of other people’s capture attempts, occasionally of formal and informal non-governmental protection, and of governmental protection effected primarily through the police and the courts.

    Legal rights are the rights recognized and enforced, in part, by the government. These rights, as a rule, enhance economic rights, but the former are neither necessary nor sufficient for the existence of the latter.

    Given this chasm between the legal and economic definitions of property rights, not surprisingly, barzel defines a firm this way:

    The firm is a nexus of the agreements (and parts of agreements) guaranteed by centralized equity capital and that are enforced without the state’s assistance.

  70. Ernestine Gross
    February 22nd, 2015 at 23:08 | #70

    Jim Rose does not provide a reference to the quotes attributed to Yoram Barzel. I take these words as a given and my comments are limited to the text provided by Jim Rose.

    Why would anybody wish to replace the well established term ‘preferences’ with ‘rights’? What is the purpose? Of course anybody can ‘value’ the moon in ‘expected terms’ and there is no law against it nor for it. Everybody can ‘consume’ the moon by looking at it – not at the same time though. People may even write numbers they give to planets on a piece of paper, call them assets, and trade them. Is this what we mean by ‘economic’?

    IMHO Jim Rose has provided yet another example of empty verbal theorising. By comparison, both axiomatic general equilibrium theory and game theoretic models are like beacons of light and clarity.

    There is a word in JQ’s post which. I believe, has been ignored sofar, namely ‘westphalian state’. This term relates to the peace treaty of Westphalia in the mid-17th century. As outlined in the following reference, this peace treaty contains elements of the notion of a sovereign state, which persist to this day, albeit embedded in international legal frameworks.

    If one takes the westphalian state as a point of reference, then the question is not what words Yoram Barzel chooses to write somewhere for some unspecified reasons but whether the phrase ‘property rights’ has any (economic) meaning in reality independent of ‘the state’ during the past 300 years in European-centric societies. I believe the answer is NO.

  71. paul walter
    February 23rd, 2015 at 05:04 | #71

    Love that, Ernestine Gross.

  72. TerjeP
    February 23rd, 2015 at 05:49 | #72

    When I acquire a block of land, the only thing that physically happens is that an entry is made in the relevant page of a register kept in the land registry of the state or territory.

    That’s how land title essentially operates under the Australian invented system of Torrens title. But land ownership predates the existance of Torrens title and lots of places don’t use the system. Most of the U.S. for instance does not use this system. The traditional alternative requires the chain of title to be traced back to it’s origin or as far back as is necessary to satisfy a buyer that the title will be secure.

  73. Ikonoclast
    February 23rd, 2015 at 06:43 | #73

    Minarchist libertarians seek to be moral entrepreneurs in the matter of redefining property rights. But then democratic socialists like me also seek to be moral entrepreneurs in this matter. Opposing existing relations with mere words (which are intended to be persuasive) is the essence of moral entrepreneurship, at the first level anyway. The framers of the treaty of Westphalia were also moral entrepreneurs. But for sure, the modern nation state, in the West at least, realistically and practically “underwrites” property laws in this phase of history.

    “A moral entrepreneur is an individual, group or formal organization that seeks to influence a group to adopt or maintain a norm. Moral entrepreneurs are those who take the lead in labeling a particular behavior and spreading or popularizing this label throughout society.” – Wikipedia.

  74. J-D
    February 23rd, 2015 at 07:29 | #74

    Ernestine Gross :
    … People may even write numbers they give to planets on a piece of paper, call them assets, and trade them. Is this what we mean by ‘economic’? …

    Have you read The Little Prince?

  75. TerjeP
    February 23rd, 2015 at 07:40 | #75

    But for sure, the modern nation state, in the West at least, realistically and practically “underwrites” property laws in this phase of history.

    I think that is correct. And proper also. But it’s a far cry from saying property rights are derived from the nation state. Or that it’s okay for the state to confiscate property at it’s convenience.

    Thankfully the Australian constitution has a “just compensation” clause. Unfortunately it does not apply to state governments.

  76. Jim Rose
    February 23rd, 2015 at 08:48 | #76

    @Ernestine Gross In Sovereignty: Organised Hypocrisy, Krasner (1999) argues that

    the word sovereignty has four distinctive attributes: international legal sovereignty as international recognition from states; Westphalian sovereignty as the principle of non-interference, domestic sovereignty as the ability of a state to maintain the monopoly of the use of violence within its territory and interdependence sovereignty as the capacity of a government to control the intra-borders movements of any kind.

  77. Geoff Edwards
    February 23rd, 2015 at 09:33 | #77


    In rule of law countries, it is near-universal that states do not seize property (compulsorily acquire) without due process, for a public purpose, and payment of compensation. This dates back to Magna Carta and is a principle of common law.

    In all Australian States, these principles of public purpose and just terms are also embedded in statute law. Interestingly, the term “resume” is often used to describe compulsory acquisition, implying (correctly) that the state is taking back what was originally its own.

    There is scholarly debate about the origin of the just terms clause in the Australian Constitution. The explanation that seems most plausible is that it was included to allow the Commonwealth to actually acquire real property. Without that clause, to purchase land for national purposes (defence, telecoms etc), the Commonwealth would have had to rely on the states who retained all jurisdiction over land tenure and development. The just terms text was included by way of addendum (to confirm the common law) and was not the central purpose of the clause.

  78. John Quiggin
    February 23rd, 2015 at 12:52 | #78

    Julie and Terje: Please stop sniping.

  79. Julie Thomas
    February 23rd, 2015 at 12:58 | #79

    Hey Prof Q, I stopped talking to Terje a day ago or so. I have said nothing today. Nothing! 🙂

  80. TerjeP
    February 23rd, 2015 at 22:22 | #80

    Geoff – you are right. However the Australian states have found occassion to circumvent the just terms tradition when it suits them. Most notably in regard to native vegetation legislation where a commonwealth bribe was all it took. However local governments (creatures of state governments) also do it fairly routinely in regards to heritage laws. If the constitution was not limited to the national government then we would likely have less meddling with peoples property rights.

  81. February 25th, 2015 at 19:37 | #81

    I realise I’m a bit late to the thread, but I figured I’d comment anyway.

    Property is a right of control over and use of objects (and, in slave societies, other people) recognised as lawful in a given society

    Legally speaking, property rights aren’t generally an unrestricted right to use an object, land (or person). Rather than are a right of exclusive possession; that is a right to prevent others from using the subject of the property right. The freedom of use of property stems from the fact that one is free to do anything that isn’t proscribed by law. As an extreme example, the owner of a knife can prevent someone else from taking the knife away, and they can use it to cut an apple, but the owner cannot use the knife to kill someone simply because the knife is their property.

    The complaint about government interference with property rights isn’t entirely misguided. TerjeP’s appeal to nature law isn’t completely without merit. Human psychology does result in people forming attachments to objects, and it’s reasonable to argue that the law ought to reflect that desire and expectation of control, along with the practical benefits of ownership and trade. Socialogically, people have expended great effort to control land and things (and people). Originally this would have been done with violence (as it is in children), but later that violence would have been implicitly leveraged through social customs and culture, and explicitly leveraged through systems of rulership and laws.

    However, it’s also important to note that at no point was this protection of things absolute. It’s absurd to suggest that shares and collaterised debt obligations naturally arise from a child saying ‘mine’ or ‘yours’ in respect of a toy. Other aspects of human psychology would regular this desire for control: attachment to people, social expectations, desire for respect, etc. These too would have been reflected in cultural conventions, despotic decrees and democratic laws.

    Even if we look specifically at the common law, favoured refuge of enterprising scoundrels, property rights don’t grant unrestricted right of use. As I mentioned above, property law doesn’t in generally protect the rights to actually do anything practical with your property. It’s not until you look at the tort of nuisance that the common law begins to consider what one ought to be able to do with one’s property without the interference of another.

    The law uses language such as ‘reasonable use and enjoyment of the land’ to describe the tort. Practically speaking resolve the dispute will involve the balancing of the interests of the plaintiff and the defendant (e.g. what is a reasonable amount of noise). This balancing will take into considering the context of the dispute such as the nature its location (e.g. is it a residentaial area or an industrial area?).

    The regulation of the use of property by governments is simply the democratisation of this balancing process. The reasonable limits on the use of property are set by the elected representatives of the whole community, rather than by the appointed judges who’s precidents are founded on the arguements of those wealthy enough to litigate to the highest courts. It also democratises the scope of the balancing as the interests of al electors, rather than just the property owning elite, becomes part of the consideration in deciding the limits of property rights.

    This brings me to the view that much of the momentum behind the libertarian movement comes from the wealthy minority who wish to undermine our system of democratic government (see also, infiltrating political parties to enact legislation and executive decisions that intentionally cause bad outcomes). They seek a world where the power of their wealth is maximised, where the owning property literally makes them lords of the land. Instead of a hierarchical aristocracy, there will be property rights and funded representatives for the wealthy elite, with lifelong employment-tenancy contracts and binding arbitration in the local lord’s court for the serfs.

    Then again, maybe I’ve been consuming too much dystopian fiction.

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