Property Rights Are Conventional
…but that may not mean what you think it means.
Property rights as enacted in the real world, not as discussed in political theory, are not imaginary. Nor are these rights “merely” conventional, as was suggested in the comments. They are conventions with consequences.
They are also conventions that sit for the most part quite well atop a certain natural substrate.
That is: Property rights are a set of conventions that conform relatively well to the nature of economic activity. Even somewhat flawed property rights regimes can go a long way toward facilitating specialization, gains from trade, the discovery of local knowledge, and the implementation of market discipline. They allow for bargaining and the coordination of diverse abilities, wants, and needs; they allow the relatively peaceful resolution of disputes; and they allow a rapid response to consumers’ desires via the price system. Property rights as they exist in the real world have never been perfect. They still do much good work.
They also foster a significant degree of internalization of the costs and benefits of individual actions. Where that internalization falls short, the remedy is not fewer property rights, but more, the better to protect blameless bystanders and force wrongdoers to bear the consequences of their actions.
That is why, barring some possibly more efficient system of achieving all these ends, I hold that enacting some form of property rights is morally incumbent on us. There is no “necessary evil” about it. Property rights would appear to be a positive good, at least ruling out certain post-scarcity science-fiction scenarios.
(Some types of property rights, of course, we can rule out right away, red herrings in the comment section notwithstanding.)
One thing that makes discussing these issues very difficult is that there is an enormous confusion of terms hereabouts. A lot of heavy moral weights are moving very rapidly in the wings.
Nature and Artifice
Let’s start with nature and artifice. As my friend Timothy Sandefur once observed — I’m having trouble finding where — the line between them is both normative and very, very blurry. He used an arresting example to show it, that of the hermit crab, which I will make use of shortly.
“Artificial” is often used to indicate that a thing is some way less than a postulated “natural” counterpart: less good, less trustworthy, or even less real — consider “real” sugar versus “fake” sugar. (And yes, the real/fake distinction is decidedly odd: How can things made by art—that is, art-i-fices— be un-real? The very point of art is to manifest an idea in the real world.)
Anyway. An artificial thing is a poor substitute. The artificial is also a category of experience that we are sometimes told belongs peculiarly to mankind. We do all sorts of things that couldn’t plausibly be imputed to Mother Nature, if She were imagined as having intentionality. We make artificial wings, giving us the power of flight. We make vaccines for artificial immunity. We have artificial birth control, and thank goodness for it.
We also use artificial communication practices and devices — language, printing, computers, and others — and these give us powers of communication that rival or surpass those of the “eusocial” insects. (Entomologists and political scientists both assure us that we are not, in fact, eusocial. I still wouldn’t want to be a termite.)
Are languages natural? If your answer is yes, then congratulations, you’ve just conflated natural and artificial, as well they deserve. Linguists point out, with much evidence in support, that our language-making faculty is hard-wired and innate. If that doesn’t count as “natural,” well, what exactly does? But if language is natural, what about poetry? Or the instruction manual for a toaster? Artifice is human nature.
Further, let me propose that animals also sometimes do things that no one would call “natural.” Animals, too, are artificers, at least once in a while and to a limited extent.
Consider the hermit crab. When the first hermit crab climbed into the discarded shell of a gastropod — was that act natural? Or artificial?
Whatever it was, it was clearly successful. This one act, which happened at least 66 million years ago, has produced a legacy today of some 1,100 species of partially soft-shelled arthropods with spiral-shaped abdomens, the better to fit into discarded gastropod shells.
Is the hermit crab more natural with its shell, or without? Are human children more natural with the use of language, or without? Are human adults more natural with clothing, or without? Or, I might say: Are we more natural with some settled, conventional forms of property rights, or without them?
The point here is that nature and artifice interact in all sorts of interesting ways. “Nature” can certainly be performative. Conventions can respond to, or take account of, mere nature, and vice versa. But any successful convention will have to fit relatively well with the nature of the things for which it is designed. (Consider the artificial hermit crab shell, 3D-printed to look and feel like a natural one. We will perhaps call the shells good or bad based on a natural and performative fact: Whether the crabs take to them or not. What other standard could we use?)
Artifice and Convention
That’s why it rankles just a bit to hear that property rights are artificial, “merely” conventional, or — as in Jonathan McLeod’s post—both imaginary and bogus. I know the moral valence of these terms. And, as with most loaded terms, I don’t approve when the term alone does all the normative work. Things can be worth saving, or not, on either side of the natural/artificial divide, which in any case is very blurry and subject to a whole lot of doubt.
Now, social conventions can be arbitrary, of course, but they aren’t necessarily so. And even the sheer act of agreeing on an arbitrary convention can have enormously beneficial effects.
For example, it is arbitrary that we in the United States drive on the right side of the road. There may have been historical origins for it, but they are irrelevant now. There is no necessary reason to favor one side or the other apart from the merest convention, and the fact that our roads (and brains) are now all set up for right-hand driving.
The moment someone deviates from that arbitrary convention, some very real, very non-arbitrary problems will arise. It avails one not at all to say that driving on the right is a mere, arbitrary, imaginary, bogus, socially constructed convention. The reason it’s beneficial is that virtually all of us obey it, virtually all of the time.
The convention also exists — dare I say it — for a natural reason. That natural reason is the deadliness of auto accidents. If we were built of adamantine, or if we all used hyperintelligent driverless cars, we might have less need of the convention. We might even think it merely arbitrary.
In our own world, the specific implementation — left or right? — matters less than the fact that some convention exists and is obeyed.
Property rights are kind of like that, I would say. Distribution is certainly important, but the most important thing — the groundwork on which even distribution rests — is the fact that both citizens and the law usually treat property in relatively predictable ways. This is the only thing that makes long-term planning and coordination of resources even somewhat possible.
Property rights allow for a relatively stable environment in which we can attempt to realize and coordinate our plans. As conventions, I property rights thus correspond to several plausibly natural things within us: the planmaking abilities that we all have, the ability to achieve comparative advantage and gains from trade, and even the psychological need to feel a measure of security in what we do from day to day.
If I am right, then it is false — profoundly false — to say that “property rights dehumanize us.” On the contrary, they allow us at least the chance to approach the life that is proper to mankind.
To verify these rather abstract claims, I invite you to examine the histories of modern societies that have attempted to abolish private property. Rarely have we witnessed dehumanization on the scale of communist China or the Soviet Union. (Does Wal-Mart dehumanize? Perhaps. But then there’s the gulag, too.)
Other means of suppressing private property rights no doubt exist. If any of them even arguably possessed the same powers of coordination, dispute resolution, and needs-signaling that are found in private property regimes, I might be interested. No alternative social systems that I am aware of appear even to take these issues very seriously.
Have great crimes been committed with the goal of acquiring private property? Of course. Great crimes have also been committed in the name of justice, and love, and truth, and God, too.
Would it be right to return land to the Native Americans? Would it be right to make reparations for slavery? Yes to both, I would say — on one condition: That the act of reparation does not all by itself cause more harm to the victims’ descendants than the goods that are returned to them.
This is a very doubtful thing to my mind. One seldom redistributes enormous amounts of property, especially real property, without severe economic dislocations. These dislocations will almost inevitably cause the most suffering among those who are already badly off. And one may question the remaining value, economic or moral, of any compensation gained in such a scheme.
If we were to give reparations for slavery and in the process cause the death by undernourishment of 10% of all African Americans, and an equal number of whites — would that be worth it? Land “reform” commonly produces famine, even when done with the best of intentions. And how exactly would we make reparations to the victims of the famine?
The time to have done something about these wrongs was much, much closer to when they were committed. We may say “let justice be done, though the heavens may fall,” but this solution wouldn’t even be justice. We would mostly be harming the victims’ descendants, as well as millions of innocents. There is a place for restitution in any decent account of property rights, but this isn’t “restitution” in any sense at all.
 Although it’s true that driving on the wrong side of the road is illegal, the law merely ratified an existing, wholly arbitrary convention, rather than creating it.
 The argument here is neither for nor against the welfare state. It’s for the existence of some kind of property, with some, probably significant, amount of stability. If you want a welfare state, it’s on foundations like these that you will have to build. Nothing else appears capable of paying for it.
Image by cliff1066™ licensed under Creative Commons.