Property, law and government (crosspost from Crooked Timber)

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.

81 thoughts on “Property, law and government (crosspost from Crooked Timber)

  1. @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.

  2. TerjeP

    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.

  3. 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.

  4. 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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