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:
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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© 2000 David Robert Foss
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