Property and the Philosophers (Part I)

I am no longer much involved in academia, but if I was, I think I know where I’d like to continue my research. I’ve often noticed that political philosophers, particularly those with classical liberal or libertarian commitments, employ certain concepts from other disciplines, while remaining largely ignorant of how they’re employed in those fields. With their penchant for abstraction, philosophers have a tendency to turn such concepts into ideal types, while hopelessly distorting them through ignorance of their rich history and social context.

In particular, I’m interested in two examples of this phenomenon. In the first, political philosophers talk about and either justify or criticize the institution of private property, based on an absurdly simplistic notion of what property is and ignorance of how it functions as a legal concept. In the second, many such philosophers like to employ the notion of a social contract to understand the nature of the state and of political authority, while knowing little about the legal concept of contract.

I’ll devote this post and the next to property, and a future one to contract.

Real vs. Personal Property

Let’s begin with the distinction between real and personal property.

Too often philosophers (e.g. John Locke and Robert Nozick), when dealing with property, confuse the distinction between real and personal property, treating the former as if it were the latter. From this mistake they get some strange ideas about the nature of property ownership. Foremost among these strange ideas is that of absolute ownership, given expression in the Latin tag ius utendi, abutendi, et alieni (“the right of use, abuse, and alienation”).

Locke notoriously tried to base the right to private property on the right to ownership over one’s physical self. You own your own body. Therefore you own the labour of your body, and by extension you own the fruits arising from that labour.

This scheme raises as many questions as it answered. Will any labour do? For example, if I go to the trouble of pouring my beer into the lake, and presuming the lake is previously unowned, do I thereby gain ownership of the lake? One answer to this question has been that only labour that adds value to a thing will give you rightful ownership over that thing.

Another problem was that, at least in Locke’s time, one actually did not have absolute ownership over one’s body, because one did not have the right to abuse it by committing suicide, nor did one have the right to freely alienate it by selling oneself into slavery. As a matter of fact, for Locke, it was actually God that owned our bodies, while we merely hold it in trust, subject to good behaviour (i.e. by conforming to certain divinely promulgated laws of nature). So even in Locke, the supposed exponent of absolute ownership par excellence, we can see that there are limits to the rights of ownership.

Absolute ownership is a concept that generally works well enough in the context of moveables or personal property. For example, few would dispute my right to use, abuse, or freely alienate a book that I own, however much it might pain them to watch me crack its spine and scribble notes on its pages. (Although even with personal property there are exceptions to absolute ownership: do I have the right to abuse my dog or cat?)

Every legal system makes some distinction — among others — between the type of property I can do with what I like because society takes no interest in it, and the type that society takes an interest in and will put constraints upon the exercise of its ownership, for the sake of the common good. Roman law put land, slaves, and certain kinds of livestock in the latter category, which made sense in an agrarian society. These types of goods were not freely alienable without going through a rather elaborate and ceremonially archaic procedure of sale called mancipium. Property requiring or not requiring mancipium were called, respectively, res mancipi and res nec mancipi. The former could, with considerable stretching, be seen as analogous to real property in the common law.

A further Roman law distinction was between two different kinds of rights to which property could give rise. Roman law distinguished between rights in rem and rights in personam. In the latter, your right was not to the thing itself, but against the person possessing it. If that person went bankrupt, you had to line up with all the other creditors. But if you had a right in rem, you got your property back before it went into the common pool of liquidity. At the risk of considerable oversimplification, it was normally the case that ownership of real property, or res mancipi, gave you a right in rem to it.

Besides making fundamental distinctions between different kinds of property and the rights and duties attached to them, Roman law also put considerable constraints upon the exercise of ownership, particularly of real property. For example, in Roman law an action was available by an heir presumptive against his father for wastage of the patrimony; the father could be turned out from his estate in favour of his son if it was found that he was squandering it to the detriment of his heir. It seems that the Romans viewed ownership of real property as more like a trusteeship: land was held in trust for the good of the familia. The familia itself was conceivable as a kind of corporate entity that one owed duties to, for just as one had a duty to preserve its material basis (i.e. its real property) for future generations, one also had the duty of preserving its sacra or religious rites, a large component of which involved honouring past generations of ancestors. In such a system, ownership could be a heavy burden, not the sort of unadulterated freedom that libertarians imagine in their possessive utopias.

Feudal vs. Allodial Ownership

If Roman real property ownership seems very constrained, English common law ownership was once just as much so. English real property law was — and to a large extent still is — based on the feudal system of social and economic organization. Feudalism still casts a long shadow, even though no one would say that the English-speaking countries are feudal in organization.

When King William conquered England in 1066, he thereby became owner (by right of conquest — though I hate the term) of its lands. For reasons of security and administration, he doled out parcels of this land to his supporters and followers, but with strings attached. The recipients became the King’s sworn liegemen, obliged to provide service to the Crown, usually in the form of military service. These liegemen in turn doled out parcels of their land to their followers in return for specified services, and so on.

We can imagine pure feudalism this way: you didn’t own land in the modern sense; rather you held it in “tenure” (from the Latin tenere, “to hold”) from someone, in return for certain rents or services. Tenure was not about one’s relationship to the land, but about the relationship between a tenant and his lord next up the feudal chain. In a sense, everyone (with the possible exception of the King) was a renter.

There were as many possible constraints on the freedom one could exercise over one’s property, as there were possible services one could owe to one’s lord, from providing knights for war, to providing a red rose at noon on Midsummer Day. You name it.

There are some constraints in pure feudalism that were nearly universal, and which sound very unlike the modern notion of property ownership. One could not freely alienate lands without permission from one’s lord, and this included leaving it to your heir in a will. It came to be the custom that your son would be allowed to inherit, subject to the payment of a fee called a “relief”. But it had to be your son, and it had to be the eldest son (this made sense when tenure was based on the ability to provide military service). And if that son was a minor, then your lord had wardship over him until he came of age, which meant that during the wardship he would collect the fruits of those lands. Also, you owed a fee towards the costs when your lord’s son was knighted, as well as towards the costs of his marriage. These fees were called the “incidents” of tenure, and for the lord they could be worth more than the nominal rent he received for those lands.

In short, under feudalism, there were so many strings attached to “ownership” that it seems almost improper to use the word. On the absolute conception of ownership, one has exclusive ownership of land, while in feudalism, one can only speak of having rights in land, which were not exclusive because others also had various rights in the same land, depending on one’s place in the feudal chain.

When John Locke writes of property as being the expression of meum et tuum (“mine and yours”), he is speaking of the absolute conception of ownership, in which a thing’s being mine, means that it cannot be yours. This conception, however well it may have worked when applied to moveables, did not translate so well into the language of feudal real property. And remember, in Locke’s time, English land law was still quite feudal, certainly more so than now.

We can see the shadow that feudal ownership still casts if we compare it to what would seem to be its opposite, namely allodial ownership. You own land allodially if you owe no rents or services to anyone, and you basically have what we have been calling “absolute” ownership. In Europe there were here and there pockets of land that for whatever reasons, did not come within the feudal system, but were owned independently of any lord. These were rare, and eventually most of them were feudalized.

In common law countries the situation is different: there is no such thing as allodial land in the UK, Canada, the US, Australia, and New Zealand. We can largely thank William the Conqueror for that. When he conquered, he conquered everything, so that ultimately everyone who held land held it from him.

Here at last, you might think, is at least one example of absolute ownership: the Crown, being at the top of the feudal chain, is absolute owner of lands, with the rest of us being merely renters. But not so. For one thing, it was always recognized that the King, as the chief landlord, owed duties of protection, etc. to his tenants-in-chief, just as any other landlord would. Furthermore, since at least 1688, the Crown is constitutionally limited and subject to laws just like anyone else. The Queen now pays taxes on her estates.

If you own real estate, and you think you might be its allodial owner, a few pertinent facts will dispel this idea. For one thing, you probably pay land taxes; an allodial owner would not. For another, if you let your house fall to ruin, or if you stop trimming your yard, the authorities can condemn your house, or get an injunction forcing you to cut your lawn. Again, an allodial owner, having the right of abutendi (abuse), would not in theory be subject to such constraints. Finally, under the principle of eminent domain, the state may expropriate you if they have a better and more pressing use for your land (subject to the proviso that they pay you a fair monetary compensation for it); an allodial owner could refuse such expropriation, but you cannot. All these facts show that you do not have absolute or allodial ownership of your land. In fact, no one does.

To repeat, when political philosophers like John Locke and Robert Nozick defend private property arrangements, they seem to imagine that there is no difference in fact or law, between real and personal property; for them my ownership of land is no different than my ownership of a tennis racket.

In my next post, I will offer an interpretation of property ownership — not my own — which I find much more plausible than those typically offered by most modern political philosophers of a classical liberal or libertarian bent.