My Dearest Gentlefolk,

This week's passage is drawn from Robert Hale, a contemporary of Oliver Wendell Holmes and Roscoe Pound, and equally devoted to a thorough critique of social Darwinism (in the image of "legal formalism").

A principle target of these three thinkers was a style of moral and legal reasoning that naturalized property, and conceived individual choice as analytically "free" (i.e., entitled to categorical deference, unless violative of Mill's principle visited last week). Contract, in particular, was viewed as a province of individual liberty that ought not be subject to molestation by government unless non-parties were placed at immediate and unmistakable risk. The legal and moral rules surrounding the possession and enjoyment of property were understood as the fundamental precepts of social organization, the enforcement of which made social liberty possible. It was therefore literally unthinkable that one could conceive of property norms as in any way coercive (in themselves).

Hale responded with a stinging critique of property. The critique is fascinating, and begs us to reflect on our current understanding of what ownership means. Particularly in a time as prosperous as ours, where ownership of land is as regulated as ours (in the name of public or environmental interests), and where the disposition of vast wealth is subject to constant oversight, we may ask whether the critique remains relevant. Do we now take the thesis for granted? Has consumer credit defused a crisis imagined in a money economy? Have the intervening seven decades witnessed a reinvention of property and liberty in a new and foreign light?

Hale tells us:

"What is government doing when it 'protects a property right'? Passively, it is abstaining from interference with the owner when he deals with the thing owned; actively, it is forcing the non-owner to desist from handling it, unless the owner consents. Yet Mr. Carver would have it that the government is merely preventing the non-owner from using force against the owner. ... This explanation is obviously at variance with the facts -- for the non-owner is forbidden to handle the owner's property even where his handling of it involves no violence whatsoever. Any lawyer could have told him that the right of property is much more extensive than the mere right to protection against forcible dispossession. In protecting property the government is doing something quite apart from merely keeping the peace. It is exerting coercion wherever that is necessary to protect each owner, not merely from violence, but also from peaceful infringement of his sole right to enjoy the thing owned."

* * * *

"If the worker has no money of his own, the threat of any particular employer to withhold any particular amount of money would be effective in securing the worker's obedience in proportion to the difficulty with which other employers can be induced to furnish a 'job'. If the non-owner works for anyone, it is for the purpose of warding off the threat of at least one owner of money to withhold that money from him (with the help of the law). Suppose, now, the worker were to refuse to yield to the coercion of any employer, but were to choose instead to remain under the legal duty to abstain from the use of any of the money which anyone owns. He must eat. While there is no law against eating in the abstract, there is a law which forbids him to eat any of the food which actually exists in the community -- and that is the law of property. It can be lifted as to any specific food at the discretion of its owner, but if the owners unanimously refuse to lift the prohibition, the non-owner will starve unless he can himself produce food. And there is every likelihood that the owners will be unanimous in refusing, if he has no money. There is no law to compel them to part with their food for nothing. Unless, then, the non-owner can produce his own food, the law compels him to starve if he has no wages, and compels him to go without wages unless he obeys the behest of some employer. It is the law that coerces him into wage-work under penalty of starvation -- unless he can produce food. Can he? Here again there is no law to prevent the production of food in the abstract; but in every settled country there is a law which forbids him to cultivate any particular piece of ground unless he happens to be the owner. This again is the law of property. ..."

I include a fair portion of Hale's analysis of the dilemma facing the marginal worker because it provides, in stark terms, a pure analysis of the way in which property norms (in themselves) produce a potentially catastrophic dilemma.

Hale ought to be excused for isolating the worker in his analysis. Of course, the worker is not normally without family, friends, or good Samaritans, any of whom may step into a momentary breach, and provide a "way out". How many friends or family members do we know who stayed on with parents or friends, without payment or expectation of rent, during a difficult period of life? Hale surely recognized the importance of such short-term shields against the otherwise intolerable consequences of poverty. But he also knew that for many workers of his day, and he could have guessed that for many workers of our own, such a safety net did not exist.

The analysis is stark because it is cast in the logic of his adversaries: Contract was considered inherently good because it manifested the free will of the contracting parties. Parties to a contract were imagined to be purely autonomous, neither relying upon nor encumbered by any third party. Employment contracts, like any other form of contract, were therefore viewed as the result of the "free" decisions by the worker to suffer the conditions stipulated therein. Hale suggests otherwise, assuming the very autonomy he surely considers artificial.

Hale should raise for us a rather pressing question: Does property remain so violent a protector of individual isolation (even desolation), or has the combined effect of widely available consumer credit, the maturation of the welfare state, and government regulation of labor and the environment mooted the critique? I would venture a guess that the impulse toward individual isolation remains, even if tempered by the considerable array of legal devices designed to save us from the very property norms we remain committed to.

At some point we may ask whether the apparatus of control has become excessively complex: like the proliferation of epicycles (and similar mathematical devices) found necessary to allow Ptolemy to tell us that the earth really is the center of the universe. Has the concept of property outlived its utility? Or is it only now coming into full flower?

David Robert Foss