Squashed

A blog of politics, law, religion, and the tricky spots where they collide.

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Property and the Propertied

In an excellent conversation with Political Prof on property, enlightenment values, and contemporary politics, huskerred writes:

My wanting to defend property would have nothing to do with others getting property. It is defense of the status quo that matters here.

Huskerred has (unintentionally) summed up everything that’s wrong with the libertarians’ insistence that they are defending “property rights.” The dogged defense of the status quo has nothing to do with society’s fluid understanding of property rights and everything to do with protecting the interest of the propertied.

Political Prof explains (quite persuasively) that property rights, like all other rights, have always been subject to certain limitations. While I agree with this—I want to take this a step further and discuss ways in which our understanding of property is malleable, defined by societal expectations, and changes according to societal need. As such, I believe the libertarians defense of their version of property rights (wittingly or unwittingly) has more to do with protecting the interest of those who own property than it does with protecting some abstract concept of property.

First, let me give the libertarians credit. When Locke wrote about property in the 17th century, he took a relatively progressive stance. For the 17th century. The general idea was that people with property have a superior right to certain things than the king. In other words, this stuff is mine, not because the king says I can have it, but because I own it based on some right superior to the king’s say-so. As a practical matter, if we believe in that right more than we believe in the king’s say-so, perhaps we can have something other than an absolute monarchy. Property doctrines divested power from the monarch to the people who have stuff. Except … that stance stopped being (comparably) egalitarian once we got rid of our absolute monarchs. Now that most of us believe that everybody is equal in some fundamental way, regardless of who they’re descended from or how much stuff they own, defending a property regime that perpetuates the extreme concentration of wealth and power to a relative few at the expense of everybody else is awfully regressive. More importantly, it’s based on the flawed notion that “property” as we understand it is some a priori thing rather than an (admittedly useful) social construction.

Envision a wooden chair. We’ll say its my chair. I own it. I carved a picture of a dog on it—and I like to sit in it. What rights, specifically, do I have with regard to that chair?

The dominant view amongst legal scholars is the (somewhat tautological) view that I have whatever rights regarding the chair that the law says I have. We bundle all those rights together and call them property rights. Because there isn’t some fundamental characteristic of the chair or the universe that makes it my chair, it is mine to the extent (and only to the extent) that the law says it is. The law was created by humans—and we can change it when and as necessary. If the interests of society would be served by removing some of my rights to the chair or adding some extra rights, there is no overarching reason not to do that.

Some of the rights are fairly obvious. It’s my chair—so clearly I have a right to sit in it when nobody else is using it. I may move my chair. I’m probably permitted to sell my chair or give it away. I may modify my chair, perhaps by turning it into a stool. I can sit on half the chair and allow somebody I like to sit (one-cheeked) on the other half. I may generally kick somebody out of my chair when they’re sitting in the chair and I want to use it.

Should I be able to forbid other people from using my chair when I’m out of town, even if their use wouldn’t hurt me or my chair? May I prevent people from making a chair similar to mine? May I prevent people from copying the picture of the dog? From photographing it? From thinking about my chair? From talking about my chair? From looking at my chair? From playing the drums close to my chair and making it unpleasant to sit there? From moving my chair, slightly, if it’s sort of in the way? From writing a (profitable) book about my chair? From copying my chair and claiming that their chair was the original? Can I destroy my chair, even if somebody wants it? If I throw my chair away and somebody fishes it out of the trash, is it still my chair? Can I burn my chair in violation of city ordinances? May I block a street with my chair? May I plunk my chair down in the sidewalk and sit there for a day? May I sell the right to sit in my chair, but only between 7:00 and 10:00 on weekdays? May I put my chair somewhere and insist that it remain there, perpetually, even after I’m dead? May I make some scoundrel who sat in my chair without my permission pay me a fair market rent for the time he sat in my chair before I caught him? Am I entitled to royalties from people whose property value increases solely because of the presence of my awesome chair? Should I have to pay taxes on my chair? Should I have to pay extra taxes if it takes police in riot gear to secure my right to quietly enjoy my chair? Can I use my chair like a drum at 4:00 in the morning? May I bring my chair with me on an airplane (because airplane seats are uncomfortable, so I brought my own). If I use my chair as a security for a debt, default on the debt, do I have any rights before somebody else takes the chair away? If I give my chair away but change my mind within a week, may I take it back? May I continue using my chair if it’s determined that it contains carcinogens that could kill me or people around me? If I take apart your chair (without your permission) to make my chair more awesome, is the resulting chair still mine? May I rent out the right to sit in my chair—but only to white men?

Two societies might answer some of these questions differently. So long as the societies follow their own rules, we can’t reasonably say that one respects property and the other doesn’t. Similarly, if two political parties disagree on how we bundle property rights, we can’t say that one cares more about property rights than the other. We can only say that, for example, one party believes we should turn to the 17th century as a definitive approach to property rights and the other thinks that’s absurd.

What we defend as a property right is highly influenced by what we value. The GOP (and the libertarians) have made a point of protecting the property status quo. (Or rather, the status quo ante as they want to roll backa bunch of changes to property rights.) Their policies tend to protect the interests of people who already have porperty over those who might someday hope to acquire it. They are not prioritizing property rights over people—because property rights are fluid and dependent on what we valued. Instead, they are prioritizing people with property—the propertied—over everybody else.

Don’t be fooled. When people decide to cite a bunch of affluent, white property-owners who wrote at a time when things were pretty good for affluent, white property-owners, is it any surprise that they seem to exclusively choose policies that benefit affluent, white property-owner? That’s not principle. That’s self-interested identity-politics.

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