Monday Muse v.1 n.13
January 3, 2000

My Dearest Gentlefolk,

This week we return once more to the precious work of understanding property. In his seminal 1964 article, "The New Property," Charles Reich provided the following characterization of private property:

Property is a legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind. The institution performs many different functions. One of these functions is to draw a boundary between public and private power. Property draws a circle around the activities of each private individual or organization. Within that circle, the owner has a greater degree of freedom than without. Outside, he must justify or explain his actions, and show his authority. Within, he is master, and the state must explain and justify any interference. ...

Thus, property performs the function of maintaining independence, dignity and pluralism in society by creating zones within which the majority has to yield to the owner. Whim, caprice, irrationality and "antisocial" activities are given the protection of law; the owner may do what all or most of his neighbors decry. The Bill of Rights comes into play only at extraordinary moments of conflict or crisis, property affords day-to-day protection in the ordinary affairs of life. Indeed, in the final analysis the Bill of Rights depends upon the existence of private property. Political rights presuppose that individuals and private groups have the will and the means to act independently. But so long as individuals are motivated largely by self-interest, their well-being must first be independent. Civil liberties must have a basis in property, or bills of rights will not preserve them.

Property is not a natural right but a deliberate construction by society. If such an institution did not exist, it would be necessary to create it, in order to have the kind of society we wish. The majority cannot be expected, on specific issues, to yield its power to a minority. Only if the minority's will is established as a general principle can it keep the majority at bay in a given instance. Like the Bill of Rights, property represents a general, long range protection of individual and private interests, created by the majority for the ultimate good of all.

Charles A. Reich, The New Property, 73 Yale L.J. 773, --- (1964).

Reich's characterization of property is actually quite subtle. He goes on to note that, in a crowded world, the "private" liberties one farmer takes with his land will almost always limit the liberties his neighbors can take with their own. More pertinently, where ownership is spread unevenly across a population, and no one is entirely self-sufficient, coercive pressures are inevitable. These pressures can become quite disagreeable, and can lead to an abiding distrust of the prerogatives enjoyed by those with greater wealth. Finally, the advent of corporate personhood has meant that significant power can be exercised by large groups of individuals within a "private" sphere, substantially undercutting the natural reach of public inspection and regulation, and paradoxically removing the "individual" from the political calculus of individual rights.

There can be little doubt that property norms actually define the boundary between public and private power. It is almost impossible to know whether property could "exist" without the public/private distinction, at least in a form we could recognize. I would venture so far as to suggest that the same may be said of the public and private spheres themselves: Would we recognize the contours of a social life void of hardened property norms such as those we enjoy?

Property is one of the ways in which we define lines of deferential or presumptive competence in our public lives. In a sense, property sets the stage upon which public discourse can be sensibly launched. Here we have a relatively uncomplicated method for determining who must provide reasons for his conduct, and when those reasons must be provided. When acting within my proprietary interest (that is, within the socio-geographic boundaries of my property), those who would obstruct my course must provide justification for their intercession. When acting without, I must provide justification in order to prevail against any objection (no matter how ill-founded). The rules for determining who owns what are quite elaborate, but mostly intuitive for those of us raised in a modern industrialized culture. We only truly question the rituals of ownership at the boundaries of the category "property": namely, the property one can claim in his or her name, the property one can claim in a novel idea, the property one can claim in his or her artistic expression, and so on.

I am actually somewhat fond of Reich's analysis. It is as passionate and sensible a defense of property as one could hope for. Yet it cannot escape the obvious and essential connection between property and talk of irreducible rights. Rights talk presupposes a system of private property sufficient to articulate crystalized categories of private and public entitlement (or presumptive competence). I have long felt uneasy about any analytical frame that describes the atoms of our moral landscape as fundamentally egoistic and the elements of our moral consciousness as imbued with an irreducible solipsism. A detailed account of my criticism of Rights talk will have to wait for another Monday Muse. It's appearance here should only serve as a reminder that our conception of property is tightly connected with our conception of rights, and that any problems we have with one are likely to infect the other.

I do not want to speak too harshly of private property. Reich puts a fine gloss on the subject. So long as majoritarian government is conceived in terms of "self-interest", private property provides a necessary foil, opening up a breathing space for foolish liberty to flourish. Do not doubt that I love "foolish" liberty! It is the liberty to make mistakes, to blunder full headed into the path of catastrophe, to skirt the boundaries of good sense, that makes this life so colorful and cherished. We cannot demand that every action be preceded by the demanding and giving of reasons. Property, sufficiently restrained, appears to offer as good a ground as any for setting the stage for a flourishing (and sensible) discourse.

I have but one plea as we dance the line private property has drawn for us: Let us not mistake the stage for the game.

David Robert Foss

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Muse v.1 n.13 David Robert Foss 01/03/2000

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