My Dearest Gentlefolk,

The lesser part of two months separates today's Monday Muse from our last conversation. I can provide no apology better than a footnote to the veritable mountain of paper standing astride my desk. The Muse, however, is meant to be a departure from the daily toll of sophistries pro and con. So I beg your leave, and press across the pages of legal history, to visit once again a familiar topic: Property.

The classical view of property as a right over things resolves it into component rights such as the jus utendi, jus disponendi, etc. But the essence of private property is always the right to exclude others. The law does not guarantee me the physical or social ability of actually using what it calls mine. By public regulations it may indirectly aid me by removing certain general hindrances to the enjoyment of property. But the law of property helps me directly only to exclude others from using the things which it assigns to me. If then somebody else wants to use the food, the house, the land, or the plow which the law calls mine, he has to get my consent. To the extent that these things are necessary to the life of my neighbor, the law thus confers on me a power, limited but real, to make him do what I want. ... In a regime where land is the principal source of obtaining a livelihood, he who has the legal right over the land receives homage and service from those who wish to live on it.

The character of property as sovereign power compelling service and obedience may be obscured for us in a commercial economy by the fiction of the so-called labor contract as a free bargain and by the frequency with which service is rendered indirectly through a money payment. But not only is there actually little freedom to bargain on the part of the steel worker or miner who needs a job, but in some cases the medieval subject had as much power to bargain when he accepted the sovereignty of his lord. Today I do not directly serve my landlord if I wish to live in the city with a roof over my head, but I must work for others to pay him rent with which he obtains the personal services of others. The money needed for purchasing things must for the vast majority be acquired by hard labor and disagreeable service to those to whom the law has accorded dominion over the things necessary for subsistence.

To a philosopher this is of course not at all an argument against private property. It may well be that compulsion in the economic as well as the political realm is necessary for civilized life. But we must not overlook the actual fact that dominion over things is also imperium over our fellow human beings.

Morris Cohen, Property and Sovereignty, 13 Cornell L.Q. 8, 10-12 (1927).

You may recall our visit with Felix Cohen, regarding "transcendental nonsense" in October (v.1 n.4). His father, Morris, brought a powerful analytical mind to bear upon the dynamics of property and contract prerogatives. His was a prominent voice in the movement that ultimately brought down the Supreme Court's view that the right to contract was a fundamental liberty protected by the Constitution. But his observations carry a broader resonance. For they suggest that property is and always has been a concept entirely separable from its "landed" origins. Property, as a fundamental right to exclude, is equally suited to protect the valued assets of women and men, whether they be authors, inventors, or landholders.

Nevertheless, one may wonder whether the link to medievalism is too strongly argued by Cohen? It would seem that the level of abstraction introduced by the mercantile economy (particularly in it's post-industrial form) is so great that it is virtually a category apart. Just as linguistic abstraction permits the emergence of "intelligence" of a sort impossible to simple biological systems, sophisticated electronic commerce may have generated an economic life incommensurable with the modal calculus of fealty and lordship.

On the other hand, it would be difficult to argue that more than a frightfully small fraction of the world's population enjoys a life of economic abstraction capable of glossing over our medieval moorings.

In Zimbabwe, we are presently witness to a disintegration of order that serves as a stark reminder of the role "law" normally plays in allocating "private" power over whole peoples. The abrogation of conventional property norms appears to be the only way that a desperately poor, and mostly black, population can see its way clear to a more equitable distribution of liberty. The political double-speak of Zimbabwe's current government should not blind us to the fact that the rule of law, understood as the rule of property, has ensured that the remnants of colonialism persisted virtually unchanged throughout the Rhodesian rebellion, from 1965 to 1979, and have survived intact well after independence in 1980.

The raw brutality of Zimbabwe's confrontation with western property norms may make us doubt that a sort of medievalism also resides at the core of intellectual property. It should not. What is intellectual property if not a principled system of assigning the right to demand tribute?

How far we have come to travel so near to home! Rome, England, and Jefferson's Yeomen farmers, mark our daily progress across the vast expanse of a "new economy." Like the vocabulary of set theory and differential calculus (itself a strange but essential aid in our traversal of the domain of quantum mechanics), the elaborate cult of medieval land-rights gives breath to our currency, and lends a strange melancholy to our dream of prosperous liberty.

David Robert Foss