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.