The Origins of Property II

The Morals

First, some quick clarifications.  

I deprived the tribe of a moral vocabulary to lubricate the storytelling.  I do not claim the tribe as described are without morality.  Indeed as an advocate of Retributive Ethics I think that pretty much all of morality is already implicit in the principle, “No bullying”.

This is a story about the origins of some kinds of property, not morality.  Readers of these posts will recognize it as a dramatic staging of the Retributive Theory of Property. But you do not have to be a Retributivist to think that hurting others is, except in exceptional circumstances, a morally bad thing. And if you agree with that then you should agree that in following The Rule our natives are doing the right thing.

The Rule, as the natives understand it does not ban all violence and I assume we agree that the exceptions it allows are also morally correct. For example, The Rule allows violence to stop bullying and I take it that we agree that it is morally permissible to use violence in defense of ourselves or others.

Another circumstance in which The Rule permits violence is the one in which one person gives another permission to do him harm and I expect all readers to agree that in this circumstance too violence is morally permissible. When one football player tackles another he is doing violence that would get him arrested outside the arena but– provided the violence is within the agreed to rules– we don’t think his actions on the field are morally wrong. We think it is permissible for the players to knock each other around because they have given each other permission to do so. No one denies this, so I won’t bother arguing for it here but will note that this aspect of our moral authority over ourselves– our power to permit violence against ourselves– has been mostly overlooked by philosophers, though it is central to Retributive Ethics.

If you agree to this much then it seems to me that you must agree that the permissions the tribe grants Wilt at the end of the story are moral permissions and that his rights vis a vis the plot of land are moral rights.

LewisportraitWe think The Rule is morally correct. But notice I neither assert nor deny that the natives themselves regard The Rule as a moral rule—whatever that might mean. I suppose that some might protest that this is a defect in the story. To follow a rule like The Rule mustn’t the natives already be convinced that is morally correct by some higher moral standard? Mustn’t they think, say, that it maximizes general utility?

No. That is a confusion about rules and rule following.  For my purposes we can regard The Rule simply as a convention in David Lewis’s sense. That is, it is a perhaps arbitrary, but self-perpetuating, solution to an ongoing co-ordination problem. That problem is how to maximize chances of survival confronted with a hostile environment and surrounded by potentially hostile neighbors. To make sense of the natives’ preference for The Rule neither we nor the natives need to think that it is the only equilibrium solution there could, or ought, to be.

I denied my natives words for “right” or “wrong”, but that does not keep them from behaving morally. I also denied them words for “promise” or “contract” or “obligation”. Do the natives make promises?

Well note that Wilt does not promise, even tacitly, to fight the next Bear that comes around. Neither does the community promise to reward future bear fighters as they have Wilt. And interestingly neither Bob nor anyone else promises not to forcefully resist if at some point in the future Wilt has to evict them from his land.

Still, some readers Wilt protest, Bob’s giving permission to the others to use force against him if he trespasses on Wilt’s land functions, in the story, very much like a promise not to go on Wilt’s land.

I happily concede the point. It confirms the Retributive Theory of Promising: the view that to make a promise just is to give someone a conditional permission to do you harm.

Now to the morals.

MORAL 1: Hobbes was wrong.  

HobbesHobbes and many after him held that in an absence of government and laws — in a “state of nature”– there could be no property.  At the beginning of our story our natives are in that state.  They lack a government and the enforcement of their only rule is voluntary. In Hobbes’ terms their situation is like that of sovereign nations interbellum:  a time of truce in a war of all against all.  And yet, pace Hobbes et. al., our natives have property and even an economy.

Hobbes is only a first in a long tradition of confusing the existence of property rights with their successful enforcement.  It is not a confusion that is often made about other rights.  Thus we think that even absent government and laws, people have a right to self-defense.   We think everyone has that right even if he or she is too weak to defend him or herself; even when no one will come to their defense.  They have that right even if they cannot enforce it.

Property rights, like the right to self-defense, are moral permissions (“privileges” in Hohfeld’s terms).  To have the right to self- defense is to have the moral permission to forcefully interfere with attackers.   To own some land is to have the moral permission to forcefully interfere with trespassers. At bottom, having that moral permission is all there is to ownership: It is not morally permissible to kick people off your land because it is your property; it is your property because it is morally permissible for you to kick people off it.

But “may” does not imply “can”.  You can have property rights even though you cannot enforce them and even if social arrangements make no provision for defending you against their violation. In our story a native’s rights against bullying are enforced by the spontaneous vigilantism of the other tribesmen.  That does not give them rights they would not otherwise have but it helps us see more clearly what those rights amount to.

We can see that our tribesmen have property rights even at the very beginning of our story because they have the right to self-defense. The right of self-defense is an ownership right: it is a moral permission to forcefully interfere with others if they should try to trespass against our bodies.  And because our bodies are objects in the world, our ownership in them emanates to other things:  however much I might admire the shirt on your back or the apple in your hand, if I cannot lay hold of them without doing violence to you, then your right to self-defense makes it permissible for you to forcefully prevent me from acquiring them.  

Thus in the state of nature you own what you physically possess. This may not seem much, but our fable illustrates how it might be enough, in principle, to sustain an economic order: a market red in tooth and claw.

MORAL 2: Locke was wrong

In our story Wilt acquires a new kind of property. He comes to own something not in his immediate possession. Things that once belonged to no one– a vacant plot of land and its contents– have become his.

How this might come about is a long standing philosophical problem with few plausible answers.

461px-Samuel_von_Pufendorf2There is the “first use” or “first occupancy” theory : the idea that the first person to discover a thing therefore owns it. This theory is often credited to the wonderfully named Samuel von Pufendorf. Alas, Pufendorf seems to have had no arguments for this arbitrary principle . Why not second use, or third? (In any case, I’ve always found it hard to believe that Pufendorf really was the very first person to discover this idea. Perhaps he was just the first to shout “Dibs!”.)

John Locke’s theory was that we begin by owning our own bodies and then by “mixing our labor” with other things — clearing land, planting crops and so forth — we somehow mix our self-ownership into these other things. This isn’t much of a theory; it isn’t even a good metaphor for a theory. As Robert Nozick observed:

…why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t? If I own a can of tomato juice and spill it in the sea so its molecules… mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?

But then Nozick himself has no better story to tell. He concedes that any theory of property needs to explain “first acquisition” somehow, and suggests, very tentatively, that it might have something to do with laboring to increase the value of things. For some reason Nozick declined to call this “the surplus value” theory of ownership though the name would have been apt.

Yet Wilt — our Wilt– was not the first to discover his land. Nor did he mix his labor with it. Neither upon it did he spin nor did he toil. We could have told our story so that he had never set foot on it before acquiring it. I conclude therefore that discovering first, mixing your labor with or improving things is no more essential to their first acquisition than is killing bears.

It is true that Wilt could be said to have earned his land by doing something the community valued and that all those who gathered round the campfire hoped that by rewarding him they would be increasing the general welfare. But this speaks to their motives for granting him the land, not to the substance of the grant itself. It might turn out that their hopes are misplaced– that Wilt grows so fat and placid on his little plot of land that he becomes useless during the next ursine attack. Even so, whether or not his possession promotes the general happiness, the land will remain his so long as it is morally permissible for him to kick the other tribesmen off it and it will be permissible for him to do so because they gave him that permission; even if they come to regret it.


MORAL 3: Ownership need not be Just

Which brings us to the core problem with the Lockean program: Locke and Nozick after him assume that the moral basis of property must be justice or entitlement. Locke’s homesteader, we are supposed to believe, is entitled to his land because he has labored hard and his ownership is just because he has left as much and as good for others. This confuses, at the most fundamental level, two very different questions: the question of who owns what and the question of who ought to own what.

In our story, is Wilt’s ownership just? Is Wilt entitled to his property? You might think so because you think Wilt’s bravery deserves to be rewarded . But remember our natives did not think they owed Wilt anything for his past behavior; they were concerned only with what might happen in the future. Neither were they paying Wilt now in return for a promise of future performance. Wilt did not promise to fight the next bear, he makes no promises to anyone.

In any case, it was only a storyteller’s flourish that made Wilt’s bravery relevant. Our natives might have granted Wilt his land for any reason that struck their collective fancy. They might have given Wilt that piece of land because they admired his good looks, or because they admired his grandfather’s accomplishments, or because they took pity on him, or indeed, because they appreciated his skill in basketball. Whether or not you think that anyone is justly “entitled” to be rewarded for any of these things is beside the point. At the end of the story Wilt would still have the only kind of entitlement that property rights require: he would be entitled– that is to say, morally permitted– to kick other tribesmen off of a particular piece of land. Again: he would have that permission because all the tribesmen had given it to him.

NozickAnd seeing this must cast in doubt the very idea of a theory of “Justice in acquisition”. Suppose that some time after our story ended, we returned to our village and found Wilt beating up on Bob. Is Wilt entitled to behave in this way or is Wilt bullying Bob? Should we expect the other natives to intervene? Before you answer you will, of course, want to know the background . Is Bob now trespassing on Wilt’s land? Or did he trespass earlier and take something from Wilt’s cache? The answer, in this case, is neither. What has happened is that one of them challenged the other to a fight and the challenge was accepted. Bob doubtless now has regrets but neither he nor any of the other natives will regard Wilt’s behavior as bullying. And, if you agree that someone can give permission for others to do him harm, you should agree that Wilt’s behavior here is not morally wrong. If so, then Wilt’s “entitlement” here to do harm to Bob is not in principle different from a situation in which Bob was trespassing on Wilt’s land. So then what about our Lockean questions: is it “just” that Wilt is winning this fight? Does Wilt really deserve to be the winner? Even if the fight is fair by local rules, if Wilt wins this battle because he happens to be genetically endowed with bigger muscles or faster reflexes is that really fair? In some larger sense is it not profoundly unjust that some are strong and others weak?

I do not know how to answer such questions. I’m inclined to think they make no sense. In any case I don’t think that answering them is any part of the job of a philosophical theory of property.

A theory of property is one thing, a theory of social justice another and it is a mistake to think that you can derive the latter from the former.

Moral 4: Remember there was a second night

If Bob and Wilt are just having a fight, then Bob may terminate Wilt’s entitlement to beat him up by saying “Uncle!” But in our story we did not describe any mechanism by which the tribesmen might rescind their property grant to Wilt. So am I saying therein that once granted property rights are inviolable forever and always and forever more? Of course not. It means only that the story is not complete.  This brings us to our next moral.

Many years ago Joel Feinberg posed a hypothetical of the sort that his namesake posed to the tribesman. He asked us to suppose

…that you are on a back-packing trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble onto an unoccupied cabin locked and boarded up for the winter, clearly somebodies else’s private property. You smash a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. 

Feinberg asked if your behavior as described would be morally permissible. Given you had to do all this in order to survive, are you morally obliged to pay the cabin’s owner compensation for the damage you have done? Had the owner come back, would it have been permissible for him to forcibly evict you from his property and leave you to the mercy of the elements?

This case and cases like it have been much discussed under the rubric “Are property rights absolute?”

An “absolutist” about property rights is someone who says that — freezing or not—it is morally impermissible for the hiker to use the cabin without the owner’s permission and that if the owner had been around he would have been within his rights to kick the hiker out to die in the snow or shoot him like a common burglar. Because the hiker violates the owner’s property rights he is morally obliged to pay the owner compensation in full for all damage done.

Non-absolutists think it is morally permissible for the hiker to break into the cabin and that it would have been impermissible for the owner to stop him. Non-absolutists differ about whether or not the hiker is morally obliged to compensate the owner.

FeinbergJoelCases like Feinberg’s sometimes come up in real life and when they do they raise legal issues. For the courts and legal theorists the question isn’t about right or wrong but about whether or not the hiker has committed a crime or a tort or both.

The answer seems to be that, in most legal traditions the hiker would not be treated like a burglar. “Necessity” would be a defense against the criminal charge. But the matter of tort is more complicated. In the US, the owner of the cabin probably could sue the hiker for damages, but in the United Kingdom, probably not.

The legal literature on this subject (which, in my view, is far more sophisticated than the philosophical one) is rich with speculation about why the two systems differ in this respect and argument about which is correct. The arguments turn on questions of economic efficiency (is it easier to insure houses or hikes?), procedure (are torts to be tried by judges or juries?) and the practical strictures on strict liability. They echo the kind of mundane considerations that we might have expected the natives to raise on the second night of our story. Considerations, for example, of which was more likely: that their children would get snake bit or eaten by bears.

Of course no one is surprised that different legal systems should give their citizens different property rights. After all, we know that such legal rights are the product of local convention and contingency.

On the other hand, philosophers, even philosophers who hold that our property rights are entirely the product of convention, have not hesitated to have “intuitions” about cases like these and draw morally universal conclusions therefrom.

Some deontologists– fearful that letting the hiker in will open the door to consequentialism– embrace absolutism: biting the bullet; ready to shoot all trespassers.

Consequentialists offer the picture of the poor hiker turfed out to die in the snow as evidence of the moral irrelevance of so called “rights” (and the moral awfulness of deontologists).

180px-Jeremy_Bentham_by_Henry_William_Pickersgill_detailOthers try to split the difference, arguing that rights come in different strengths or weights or lexical orders. Some take it to show that rights are only morally prima facie, or only “side constraints” or tie-breakers. And some take the whole dispute as evidence that all talk of natural rights is, as Bentham said, “nonsense on stilts”.

None of the philosophical parties to these disputes hesitates for a moment to draw conclusions from their intuitions about these cases to the nature– not just of property rights — but of all rights. If the cabin’s owner may not shoot that hiker as a trespasser, then no right can be absolute!

So return to our fable. Suppose that some time after our story ends, famine strikes. Bob finds himself starving and the only available food is a pile of apples in the middle of Wilt’s land. If Bob tries to take one of those apples, would the tribe count it as bullying if Wilt tried to stop him? Or, if Wilt wasn’t around at the time, would the tribesmen treat Wilt as a bully if he tracked Bob down and forcefully extracted compensation from him?

It depends, of course. It depends upon what was decided on the Second Night. And it is easy to imagine how arbitrary, local contingencies might have made for different decisions. Did , on that evening, the natives fear famine more than bears?

The moral is that some rights like the perdurant ownership in land are the products of convention, and that means that whether, and to what extent they are “absolute”, and whether and how they may be rescinded or amended, is also a conventional matter.

Of course it was a fantasy to suppose that our natives could have sorted all this out in a couple of nights . More likely the debate would have continued for years, decades or millennia, and the natives would have ended up where we are now: still arguing round the fire about hypothetical cases. The argument should continue, but let no one round the fire claim to be arguing from raw “intuitions” about the “nature” of property, or analyzing “the meaning” of ‘property’. When it comes to property rights, we, like the natives, are making it up as we going along.

The methodological moral of this is that any philosopher who wants to think about the nature of rights and their place in moral thinking ought to avoid examples that involve property rights over inanimate things. For clarity of intuition: think of matters that were already settled before the first night. Think about when it is morally permissible to step on someone’s foot, not their real estate.

MORAL 5: Anything can be property

Can ideas be property?

Perhaps because they are in thrall to Lockean metaphors about “mixing ones labor” even philosophers who are friendly to the idea of property have a hard time making sense of making property out of ideas. You can’t homestead on intellectual property.

When it comes to justifying the institution of Patents and Copyright even Nozick resorted to a baldly utilitarian defense (he thought they encouraged invention and hence made everyone better off). The most rabidly libertarian sites on the internet regularly feature writers who demand the socialization of intellectual property with the same fervor (and mostly the same arguments) as Marxists decrying the private ownership of steel mills.

The problem is usually framed like this: How can the simple fact that someone else thought of it first make it wrong for me to practice an invention or play a tune without that person’s permission?

I don’t think there is a good answer to that question, but it is the wrong question.

What makes Wilt’s land his is not that it has somehow become impermissible for anyone to step on it without Wilt’s permission but that it has become permissible for him to forcibly evict anyone who does. It is morally permissible for Wilt to kick the trespasser off his land for the same reason it is morally permissible for the lineman to sack the quarterback. The trespasser and the quarterback gave their assailants permission to be treated in this way when they agreed to play by certain rules. Acknowledging the moral permissibility of the lineman’s action doesn’t require us to say that the quarterback is a bad person doing a bad thing.

To have a property right over a thing is to have the moral permission to forcibly prevent others from using or enjoying it in ways that you do not approve. That means that more or less anything that anyone can be forcibly restrained from using can, in principle, become property. (Whether it ought to be is, again, a wholly separate question).

WiltChamberlainThus return to our fable and now imagine that there was no camp site that Wilt especially coveted. Wilt didn’t care where he slept. And because he was able to amply provide for himself, he had no need for gifts of food, hides, tools or trinkets. Suppose what Wilt wanted– what he yearned for with all his heart–, was to sing. And suppose that he loved to sing one song in particular: a sentimental old ballad about battles won and loves lost. No one could remember the origins of the song: the natives just called it “The Old Ballad”.

Wilts problem was that he was a terrible singer. Of an evening round the tribal campfire, when Wilt would begin croaking out the Old Ballad, some other, better singer would inevitably take up the tune and shame him into silence. And then Wilt would be very sad.

Suppose that of all this Bob was well aware. And so that first night round the fire when he rose to address the crowd, Bob did not speak of plots of land but said instead, “We all know how much Wilt loves to sing The Old Ballad. Therefore in appreciation for his great service I now say to him and all of you that, from this day forward, if I should ever sing a note of that song I hereby grant permission to Wilt and everyone else here assembled to beat the crap out of me.”

And hearing Bob’s grant, and understanding its wisdom, all the members of the tribe rose and likewise gave permission. And so it came to pass that after that evening they never more called it “The Old Ballad”. It had become “Wilt’s Song”.

And thus it might have been that in that primitive jungle glade the very first enduring property right that anyone ever acquired was a copyright.

Thanks to Kadri Vihvelin, Bill Barthelemy, David Gordon and Michael Zelney.