Property Rights Are Conventional


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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154 Responses

  1. Avatar Chris says:

    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.

    I think I’ve read this before. I don’t think it’s accurate, but I think its accuracy hinges on a question of for whom private property systems, as opposed to communal property systems (I don’t mean Communism), are more efficient, and I suspect that you and I would answer that question differently.Report

  2. Avatar BlaiseP says:

    WVO Quine once said “Students of the heavens are separable into astronomers and astrologers as readily as are the minor domestic ruminants into sheep and goats, but the separation of philosophers into sages and cranks seems to be more sensitive to frames of reference.” Report

    • Avatar Chris in reply to BlaiseP says:

      Quine is actually more relevant to this discussion than this post would suggest. As is Kripke (I wanted to mention him before Stillwater, just to irk him) and Putnam, and much of the last 50 years of linguistic philosophy.

      In my own field, the empirical evidence shows that we tend to think about what might be loosely conceived (in fact, in folk metaphysics, almost entirely unconsciously conceived) as natural kinds and artifacts. For example, we tend to be essentialists about natural kinds (consistent with Kripke and Putnam… haha, beat Stillwater again!), but not about artifacts (in fact, our thinking about artifacts is significantly more complex, being related as it is to elusive things like intent).

      This distinction — between artifact kinds and natural kinds — actually gets at much of what we discussed in the previous post, and what Jason is on about here. If we conceive of rights as natural kinds, which many of us do (in fact, that seems to have been where the founders of the U.S. of A. were coming from, an unfortunate vestige of our Christian heritage, I’d say), then we are going to think of them in essentialist terms, and we’re going to tend to be largely inflexible about them in ways that can ultimately be counterproductive. If we think about them as artifacts, and conventions are a sort of social artifact, then we can be more flexible and in tune to pragmatic concerns.

      I’m afraid Jason moves too close to an essentialist conception of rights because he treats humans, not merely in their status as biological animals (I’m playing fast and loose with terminology here, I know, but only to avoid being even more wordy than I am already being), but also in their status as cultural beings, as natural kinds, and so because he has an essentialist view of human nature, his conception of rights is much less mutable than I would prefer.Report

      • Avatar Chris in reply to Chris says:

        I meant “more relevant… than this comment would suggest,” referring to Blaise’s comment, not Jason’s post, in case that was unclear.Report

      • Avatar BlaiseP in reply to Chris says:

        Yeah, exactly. Anyone who knows philosophy well enough to know Quine’s distinction between analytic and synthetic truth doesn’t need to be told that story again — and those who haven’t been told need to read Quine for themselves.

        Rights are as imaginary as chivalry or duty itself. There’s absolutely nothing real about a right in law. It’s an entitlement to something, embodied in a contract of some sort, an immunity from interference. A right is a privilege. Rights can be waived, rights can be annulled. Rights can be exercised, rights can be abused. But they are not real.Report

        • Avatar Jason Kuznicki in reply to BlaiseP says:

          May I suggest driving on the left side of the road?

          Those cars driving on the right? They’re imaginary. Like chivalry.Report

          • Avatar BlaiseP in reply to Jason Kuznicki says:

            Oh Jason. You have the right to drive because you have a driver’s license. You have an obligation to drive on the correct side of the road. But you knew that distinction, dincha?Report

            • Avatar Jason Kuznicki in reply to BlaiseP says:

              I did.

              I also knew that Quine rejected the analytic-synthetic distinction. But I was being kind. If it was his, then it was only so by virtue of his having killed it. Which fits perfectly your approach to the matters at hand.Report

              • Avatar BlaiseP in reply to Jason Kuznicki says:

                Let’s return to your example. I remember, after three years of driving in the UK, renting a car at O’Hare and pulling onto the street. It felt very strange driving down the right hand side of the road and my first left turn was a act of teeth-gritting, absolutely-against-the-grain obligation to reality.

                So you’ve picked a rather interesting example, one which required conscious adherence to obligation. It also has nothing to do with my Rights and everything to do with what years of driving in the UK had told me was the Correct Side of the High Road to Drive Upon.

                That being the case, one you brought up yourself, I do not have a Right to drive on either side of the street. Nor is it a mere convention. It is a Law: a convention promoted to Obligation. My Right to Drive is at best a contingent right, predicated upon learning the Rules of the Road, violation of which will result in that right being revoked.

                Your problem, Jason, is this: your analogies betray you. Your right to property is also a contingent right: if you do not pay your mortgage or your car payment, you will find out just how this process works. It may rankle you — I may rankle you, really, your rankletudinousness is a product of an imperfect understanding of both property and rights colliding with the real world. You want property to be more than a convention and it simply is not. This society provides you with rights in plenty, while your interactions with your lenders and mortgage holders remain within the terms of the contract. And when you have fulfilled your obligations, you will be given a piece of paper, issued by the State which will say TITLE writ large upon the heading and your name upon it. And that is all you will have, Jason. A new piece of paper. Nothing else has changed.

                I repeat myself, or more precisely Quine: the difference between a crank and a sage is a frame of reference.Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                Yes, let’s talk about the analogy.

                The convention of driving on a given side of the road predates the existence of any law mandating it. What do you suppose happened before the law existed? People obeyed out of respect for convention, and because it suited their self-interest, and because after a while it really does get into the brain exactly as you say. That’s just what convention does, with or without a law.

                The fact that this convention was later made into law is exactly parallel to property rights: The existence of titles, licenses, and the rest comes after the conventional practice of recognizing a simple distinction between mine and thine.

                Titles are a clear improvement, but they are an improvement on something that began, and remains — as I said — conventional.Report

              • Avatar BlaiseP in reply to Jason Kuznicki says:

                Ah, the old Hoary Antiquity argument. Now hath God delivered you into my hand for I am all about ancient factoids and trivia.

                Your little backgrounder doesn’t tell the whole story. Since Roman times, carts had gone down the road on the left. In 1776, the Revolutionaries started driving on the right hand side of the road, in defiance of the laws.

                Your right to your property can be changed by an easement. Say you let your neighbour drive over your property to get to his garage. Tolerate that for long enough and he’s created an easement.

                Your right to your property is a complete fiction, created and maintained by pieces of paper and the enforcing authorities which issued them. Without them, you could be driven off your property and there would be no recourse, beyond killing the guy who took it. We need to keep such fights to a minimum, so we’ve put the State in the middle, with some mild-mannered Recorder of Deeds behind the counter. He hands out these pieces of paper to people. And you seem to think they’re more than a piece of paper. Simple Distinctions such as you describe are childish. In this nation and every other, there is the concept of common property, not owned by you or me. The State owns them in trust. You can get a permit to graze your herd on those lands.

                When horses arrived in North America, the first tribe to get them were the Pueblo. They sold horses to the Comanche and other Plains tribes, who promptly evicted the Apache, rousting them out into the deserts of the Southwest. The Comanche did the same to the Crow.

                I mean, really, I keep putting forward Martin v. Hunter’s Lessee forward. You never see fit to comment on that. Your rights are nothing unless they are enforced on your behalf. The very notion of private property can only exist in a framework of pieces of paper and those mild-mannered clerks who issue them.

                The Native Americans had no such conventions. They were made up. When the Crow were pushed off their lands by the Comanche, guess what they did? That’s right, they went off and curried favour with the White Man’s Government who eventually beat the living hell out of the Comanche.

                The Crow got a huge reservation in Montana, on good land. The Comanche were pushed into Oklahoma with the Kiowa. The overwhelming majority of the Crow still speak their language — as a first language. The Comanche are in big trouble as a tribe. They don’t even have a reservation any more. Less than one percent of the Comanche can speak their language.

                Your property rights are no different, really. Just pieces of paper, Jason. You can cling to this precious fantasy of Property Rights. Those rights are granted to you. There was never a period in human history where Mine and Thine made a bit of difference. Thine became Mine if I could snatch it from your hand. Now I don’t want to snatch your property and I rather approve of the idea that people are punished for such things. But let’s not play games with Hoary Antiquity.Report

              • Avatar Kim in reply to BlaiseP says:

                Lest we start to evoke gypsies, and codified rights for “snatchery.”Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                If the law about driving on the right-hand side were repealed tomorrow, would you start driving on the left?

                If not, then you’re just banging the table with all your talk about positive law. It doesn’t do the things you think it does, not even in the place where you say it’s most obvious.

                I don’t deny that property rights are realized through law. I affirm it. I always have. But they aren’t merely arbitrary, and they aren’t made by law — except in response to a real and natural human need.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                That’s a big If, Jason. Laws are not repealed without votes. Who would vote for such a repeal? This example, like so many of your other examples, is a bigger horse than you seem able to ride.

                You know, Plato gave us an important distinction between hylas and eidos, from which we get the word idea. Hylas is the real world, an island. Eidos is the idea it’s your island, by whatever right, right of conquest, right of forfeiture, right of title. But your island isn’t a nation state, Jason. If it were, you could enforce or repeal any law you thought wise or foolish.

                There’s that bit of Gulliver’s Travels where the Little Endians are at war with the Big Endians:

                His majesty desired I would take some other opportunity of bringing all the rest of his enemy’s ships into his ports. And so unmeasureable is the ambition of princes, that he seemed to think of nothing less than reducing the whole empire of Blefuscu into a province, and governing it, by a viceroy; of destroying the Big-endian exiles, and compelling that people to break the smaller end of their eggs, by which he would remain the sole monarch of the whole world. But I endeavoured to divert him from this design, by many arguments drawn from the topics of policy as well as justice; and I plainly protested, “that I would never be an instrument of bringing a free and brave people into slavery.” And, when the matter was debated in council, the wisest part of the ministry were of my opinion.Report

              • Avatar Jaybird in reply to BlaiseP says:

                When was the last time that any law had a significant repeal that came through the legislature rather than at the hands of The People?

                Now, I realize that I had to phrase that the way I did because of the whole “gay marriage” thing that recently happened and whenever you say “excepting (big event), when was the last time that such and such happened?” you sound like you’re asking “What have the Romans ever done for us?”

                Anyway, it doesn’t seem to me that repeal is something that we, as a society, go through that often. We have a handful of big ticket items (gay marriage, we’ll see what happens with weed in the next year or so) but, for the most part, when laws become obsolete, they just stop being enforced for the most part.

                We don’t repeal them. They’re still on the books. They’re just books that nobody reads anymore.Report

              • Avatar Kolohe in reply to BlaiseP says:

                “When was the last time that any law had a significant repeal that came through the legislature rather than at the hands of The People?”

                55 mph speed limit?Report

              • Avatar BlaiseP in reply to BlaiseP says:

                That’s an excellent point, Jaybird. Legislatures are afflicted/blessed with Conservatives, for whom the past is our guide to the future and not the present.

                Sensible people look at the world and see certain classes of people and declare those classes are a nasty artefacts of past conventions: Negroes, Homosexuals, Women, Dope Fiends and the like, people unworthy of being treated as individuals.

                Acting out of pure spite, lest any members of those groups gain equality, they declare any efforts to abolish those class distinctions a tyrannous imposition of the government’s will, a Communist conspiracy to sap and impurify all of our precious bodily fluids.

                This business of not enforcing laws is a knife which cuts both ways. The quickest way to deny someone a Right is to stop punishing infractions of those rights. And the quickest way to that goal is to cut budgets and fire bureaucrats, a self-evidently good thing in many frames of reference. Bush43 cut enforcement budgets and never hired anyone to enforce EEOC law. He did, however, see fit to greatly enlarge bureaucracies which infringed on our rights, Homeland Security chief among them.

                Sure, out there in the odd corners of many municipal ordinances, curious little laws about the placement of spittoons are still on the books. But these days, as I keep saying, rights are nothing if they aren’t enforced. That’s why they’re imaginary, Jaybird. We only think they’re graven into every human heart. That’s delusional thinking. We have our rights because The People insist on their preservation, a constant struggle.Report

              • Avatar Jaybird in reply to BlaiseP says:

                I suppose we’ve evolved to a position where the laws are modified to fit what everyone is doing anyway which is functionally identical to repeal as far as non-political types are concerned.

                When we, as a society, stand together and say “We Are All Sammy Hagar Now”, we can get a law fine-tuned and the speed limit is a perfect example of that… but when was the last time we took a law off of the books and said “that’s not a law anymore”?

                Or is that a distinction without much of a difference (except to the pedant types out there)?Report

              • Avatar BlaiseP in reply to BlaiseP says:

                The PATRIOT Act was nothing less than a repeal of the Fourth Amendment. Gramm-Leach-Bliley repealed Glass-Steagall.

                Most of it is phrased in terms of removing certain bits of text on old statutes and replacing it with others. LBJ did a lot of that, since he knew the legislation which was already on the books: that’s how he got so much done. But some legislation, as with G-L-B, is a wholesale repeal.

                There is a difference, I think.Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                You know, Plato gave us an important distinction between hylas and eidos, from which we get the word idea. Hylas is the real world, an island. Eidos is the idea it’s your island, by whatever right, right of conquest, right of forfeiture, right of title. But your island isn’t a nation state, Jason. If it were, you could enforce or repeal any law you thought wise or foolish.

                You know, it’s really an odd experience discussing these matters with you.

                I talk about norms, you reply that I’m being naive — “Look, over here, it’s the real world.”

                I talk about the real world. I suggest that, whatever the merits of being solidly real, there are ways in which the real world falls short of certain readily identifiable norms.

                “Dreamer,” you say.

                You’ve read your Plato alright. But I doubt you’ve understood a bit of him. The purpose of moral and political philosophy is not simply to describe the real, or to chase after the wielders of power, dutifully ratifying whatever they have done as right.

                The whole point is to pose a challenge to power, and it avails nothing to insist that reality is real when someone else is talking about how it might be improved. It’s a red herring, a category error, and ultimately it just leaves you off in your own little corner.

                We’re having a discussion about norms here, and you’re welcome to join us at any time. But insisting that what’s real is real is both a truism and an entirely unrelated matter.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Rights are not real. Rights are ideas. You are not talking about the real world, Jason. You’ve already conflated Rights with Obligations. You’ve tried to say the convention of driving on a given side of the road predates the existence of any law mandating it. And that wasn’t true, either.

                I may not be the sharpest knife in the drawer: this place features plenty of good philosophers. But I will not be told, not by you in any event, that I don’t understand Plato. Plato knew where law sprang from: the authority to enforce it. All that business in the first part of Laws, where he lays out why the various city-states were shaped by their landscapes, right down to the way they equipped their troops. Plato says lawmakers are guided by virtue and not mere necessity, the virtue which creates laws applicable to all, not a few corrective actions.

                If you examine our Bill of Rights, each of them were enacted as a direct response to some onerous restriction imposed by the British Crown. Look at the Constitution, how it carefully fences off the President lest he become a king in all but name. Look at the Declaration of Human Rights, all based on identifiable offences against people through history. Before anyone can be truly free, we must all be free. That’s not about the individual, Jason. That’s about the group.

                Category error, my ass. I started this off with a quote from Quine about cranks and sages and frames of reference. You have made a dog’s dinner of your own argument. I know, I know, Property Rights are doctrine for Libertarians, you base your entire philosophy upon them. And that’s why you’re cranks, to a man: a crank, by definition, can’t prove his argument from facts or experiment and declares everyone else a conspirator against him, tryin’ to cover up the truth.Report

              • Avatar James Hanley in reply to BlaiseP says:

                I know, I know, Property Rights are doctrine for Libertarians, you base your entire philosophy upon them.

                Actually, by claiming property rights are social conventions, instead of natural law, Jason’s being pretty non-doctrinaire for a libertarian.Report

              • Avatar Chris in reply to BlaiseP says:

                It’s very weird to reference Plato as the source of the argument that there is a material world and a world of ideas, and that it’s the material world that is more real.

                Also, it’s a greatly impoverished and ineffective metaphysics metaphysics today that treats the world of ideas and the world of physical objects as so separate that only one can reasonably be called real.Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                Rights are not real. Rights are ideas.

                Do you sincerely think this is news to me? Lots of good things are “just” ideas, and would you forbid us from talking about any of them?

                You’ve already conflated Rights with Obligations.

                One man’s right is another man’s obligation, even if it is often only an obligation to refrain from doing something. No confusion there at all, not even in the example where you imagined it.

                You’ve tried to say the convention of driving on a given side of the road predates the existence of any law mandating it. And that wasn’t true, either.

                I maintain that it is true. Do you know of any Roman laws decreeing it? If not, the evidence favors me. I might be interested to see the bit about 1776 — I understand that urban legends abound on this topic — but even that wouldn’t prove your claim. It would only mean we’d have to look further back in history.

                I may not be the sharpest knife in the drawer: this place features plenty of good philosophers. But I will not be told, not by you in any event, that I don’t understand Plato. Plato knew where law sprang from: the authority to enforce it.

                Socrates asked Thrasymachus what the good consisted of. Thrasymachus answered that it’s whatever is decreed by the stronger. He was asked then — what if the stronger does something that is against his own interests? For which he had no answer.

                That’s exactly where you are now. Dance all you like. Copy and paste your poetry. You haven’t moved an inch from “might makes right” in this whole long discussion. It may be your position, and you may believe it fervently. I find it barely even worthy of examination.

                Category error, my ass. I started this off with a quote from Quine about cranks and sages and frames of reference. You have made a dog’s dinner of your own argument. I know, I know, Property Rights are doctrine for Libertarians, you base your entire philosophy upon them. And that’s why you’re cranks, to a man: a crank, by definition, can’t prove his argument from facts or experiment and declares everyone else a conspirator against him, tryin’ to cover up the truth.

                Nah, on this thread it’s just you. Virtually everyone else gets what I’m saying. I’m looking forward to Conor’s reply, if it ever comes, but there hasn’t been a whole lot of substantive criticism, just nuance around the edges, application in practice, noodling about the definition of eusociality… and you. Of course. It’s always something with you.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Stop squirming. You said Rights emerge from some natural but as-of-yet undefined and googly-moogly substrate. Here’s what I have on Romans driving on the left. And the more you try to drag this obligation into the realm of right, the worse it becomes for you. Obviously someone made a rule for Rome. They did drive on one side or the other. And that rule didn’t arise from convention. It arose because someone decreed it and the vigiles urbani would have enforced it.

                You need to read more Plato. Try Gorgias:

                Gor. That good, Socrates, which is truly the greatest, being that which gives to men freedom in their own persons, and to individuals the power of ruling over others in their several states.

                Soc. And what would you consider this to be?

                Gor. What is there greater than the word which persuades the judges in the courts, or the senators in the council, or the citizens in the assembly, or at any other political meeting?-if you have the power of uttering this word, you will have the physician your slave, and the trainer your slave, and the money-maker of whom you talk will be found to gather treasures, not for himself, but for you who are able to speak and to persuade the multitude.

                Soc. Will you understand my answer? Rhetoric, according to my view, is the ghost or counterfeit of a part of politics.

                You’re slap out of rhetoric, Jason. Maybe someone else takes your theory of rights seriously. Sounds suspiciously like Spontaneous Generation to me. Sui generis arguments are articles of faith. Law arises from the power to make it and the power to enforce it.Report

              • Avatar Chris in reply to BlaiseP says:

                Blaise, I think you’ve misinterpreted Jason by a mile.Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                And just what does that link say about driving?

                “[I]t seems almost certain that in the early years of English colonization of North America, English driving customs were followed and the colonies drove on the left, gradually changing to right-hand driving after independence.”

                Quite different from what you’d maintained, which was that it was a conscious revolutionary act dating from 1776.

                And the Romans?

                “”I have been unable to discover any firm evidence as to what the rule of the road was in any part of the ancient civilizations in Greece, Rome, or Assyria. It seems inconceivable that there was not one.” We have found, however, evidence that the ancient Romans drove on the left.”

                So, exactly as I said, they appear to have had no laws treating the subject. Only customs.

                An admission that you were wrong is probably more than you can manage. Don’t worry, I’m used to it.

                As to Gorgias, he too got his argumentative ass handed to him. Despots and sophists are those who, like you, claim that might makes right, and who, unlike you, act on the principle. Socrates maintains that they are pitiable and powerless. Which they are.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Whatever they’re not, Jason, they don’t have the power to make rules or enforce them, not while they are just rhetoricians. But many is the Big Talker who gained those powers, for both good and evil. If rhetoric is the shadow of politics, raw power is what casts that shadow.

                Rights are completely arbitrary: the virtues they protect equally so. Your right to own a nuclear weapon is right out. I think that’s a good rule for you. I wouldn’t trust you with anything sharper than a marshmallow, truth to tell. But it’s also a good rule for me, a right I would willingly forfeit just to keep you from having one.

                Your fixation on property rights is absurd, literally without grounding. If you have the right to own your property, there are clearly limits on those rights and your ownership of property entirely contingent on proof of such, acceptable to the people with actual power. You don’t get to drive your car out of the driveway without license plates. You drive on the right because it’s the law. A completely arbitrary right.

                Does might make right? Might can certainly make wrong, that much is undeniable. As such, might can make either right or wrong. But deprived of power, some folks resort to dogma. Thus saith the Lord. Thus says Ludwig von Mises. Not a particle of difference.Report

              • Avatar Chris in reply to BlaiseP says:

                I can’t think of any sense in which “rights” are arbitrary. I’m cool with calling them artifacts or conventions, but they are in no sense arbitrary. The idea of rights, and the shapes that particular rights take, aren’t simply pulled out of someone’s ass. They have reasons, causes that are related to the structure of human institutions and their interaction with human psychology, and for the most part when people posit new rights, or new shapes for existing rights, they do so with reasons as well.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                They’re all pulled out of people’s asses, Chris. All virtue ethics structures are based on some old jackass saying that’s just the way things are done and furthermore it’s the will of the Gods. All sorts of injustice has been perpetuated on that basis.

                Virtue emerges from Culture — there’s the Natural Substrate, the primordial slime, the Sea of Milk from which all ethics arose, the ones which might or might not guide the people with power to create exceptions to their absolute powers, the Rights we so proudly proclaim to be Natural. They’re not natural and have no basis in nature. We’ve bought into this Just So crap for so long, we think it’s a part of Human Nature.

                I take a very dim view of our species. We crave power for ourselves, the power do to as we please. We sublimate that power, trying to elect people who will use that power to do the things we want and grant us such powers and exceptions to the rules. Governments are not instituted among Men, deriving their just powers from the consent of the governed. They are instituted above men — by men — with sufficient power and means to alter or to abolish the previous government, and to institute new Government, (and it’s always done in the name of The People), to give themselves Rights they didn’t have before. If, out of the goodness of their hearts, they saw fit to give us a Bill of Rights, they sure didn’t extend those rights very far beyond themselves. Report

              • Avatar Chris in reply to BlaiseP says:

                You and I have different definitions of arbitrary.Report

              • Avatar Bob2 in reply to BlaiseP says:


                : depending on individual discretion (as of a judge) and not fixed by law

                a : not restrained or limited in the exercise of power : ruling by absolute authority
                b : marked by or resulting from the unrestrained and often tyrannical exercise of power

                a : based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something
                b : existing or coming about seemingly at random or by chance or as a capricious and unreasonable act of will

                Well that certainly could be a major difference. FWIW, I defined arbitrary like BlaiseP did according to his context.
                I am avoiding discussion from above about Quine and a priori vs a posteriori arguments though.Report

              • Avatar Chris in reply to BlaiseP says:

                Bob, I said Quine was more relevant than Blaise’s quote implied because of his discussion of natural kinds, not because of the analytic-synthetic distinction.

                And since rights have come neither from individual whim or the exercise of a despot’s power, and they certainly aren’t random, in what sense are they arbitrary?Report

              • Avatar Jason Kuznicki in reply to BlaiseP says:

                I wouldn’t trust you with anything sharper than a marshmallow, truth to tell.

                You can have my kitchen knives when you pry them out of my cold, dead, cilantro-tinged hands.

                Beyond that, we’re at our usual impasse.Report

              • Avatar Michael Drew in reply to Jason Kuznicki says:

                Note how in a certain sense the fact that many traffic practices operate “merely” on the basis of convention as opposed to actually needing law that has codified them to continue to order life in a useful way, is central to the point here. I realize the word wasn’t used, but the point is the same.Report

              • Avatar Jason Kuznicki in reply to Michael Drew says:

                For a society that lacks any convention about which side to drive on, yes, the choice would appear to be wholly arbitrary. But even for them, it’s not merely convention. By following one path or the other, things will certainly go better.

                Likewise, if a society lacked all written language, I might try to supply one to them using either the Latin or the Greek alphabet. That choice wouldn’t matter so very much at the outset (maybe Latin’s a better choice, sure), but the point is — they would be better off with either one of them, rather than none.

                Likewise with conventions about private property. Does the water passing through your property belong to you by default, or is it by default allocated to someone downstream? This matters a whole lot less than the underlying question of whether there are recognized private property rights at all.

                In the case where water rights exist, and where the transaction costs of a bargain are low enough, they can at least be bargained for, as Ronald Coase noted. If those rights don’t exist, or if the transaction costs are too high, then externalities will abound, and there will be needless waste and suffering.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                If you insist on believing that saying that something is merely convention is the same as saying “and therefore can’t be any better than any other convention,” I can’t stop you from it. You’re just wrong.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                …Or if that’s not what you’re saying, I just don’t understand what the direct version of whatever you are saying about the “mere” term is.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                …But I was a little petty in bringing it back up, so I’d be happy if you want to have the last word on it. So these comments can be disregarded if people would like to do that. I concede the point, whatever it is.Report

          • Avatar Kim in reply to Jason Kuznicki says:

            /a fish called wandaReport

      • Avatar Stillwater in reply to Chris says:

        Haha! Well, you did beat me to the explicit references. I’ve been spiralling around those themes in the last few threads, even the Dworkin post, but I didn’t make any explicit connections. So you get full points!

        And what you say here is very interesting. In particular, I think traditional conservatives would be inclined to say that at the time of the Constitutional Convention and ratification, the term “rights” (as well as others terms) was used as a rigid designator to refer to that collection of properties uniquely identified in context by particular definite descriptions. And they’d also say that modern liberals confuse the descriptions used to fix the a reference with the meaning of the term.

        I’ll have to ponder that a bit.Report

    • Avatar Stillwater in reply to BlaiseP says:

      Nobody writes like Quine. Pure genius. I used to re-read my favorite parts of Word and Object just for the poetry of the language.Report

      • Avatar MikeSchilling in reply to Stillwater says:

        Set Theory and its Logic is awesome. It’s about stuff that’s abstract, deep, and complex, all at the same time, but he writes with such clarity and rigor that you never feel lost.Report

        • Avatar Stillwater in reply to MikeSchilling says:

          He could turn a phrase and convey content. That’s an amazing combination in any writer, but especially so for a writer in analytic philosophy. I read Mathematical Logic and was impressed by the clarity of expression, the introduction of useful concepts, the accuracy of descriptions, and the poetry of the language. Word and Object remains one of my all time best reads.

          I never read any of his math-logic stuff after that, tho. I wasn’t really keen on math-logic (it’s fucking hard) and set theory, while useful as a basis for the maths, has inherent limitations as an analyses of natural language. (Given that the extension of terms will differ over time it effectively requires terms to mean functions which determine sets, no? You can’t escape Carnapian intensions. Or so it seems to me.)Report

          • Avatar Stillwater in reply to Stillwater says:

            Along those lines, and pulling in Chris’s comment above, what Quine, Kripke and Putnam were arguing in their own way is that natural kind terms express intensions that take the utterance of the term to a determinate entity. (Quine sorta by-passed the intensional component of a term and went right to extension, but he expressed this view before others worked on it and formalized it.) Stalnaker talked a lot about this too (and David Kaplan with his “dthat”) as well as Chalmers in particular, who collectively sorta formalized the concept of distinguishing between a term meaning an intension (a function) which takes its value to a fixed referent in all possible worlds (or contexts) and a term just referring to that (dthat) entity in this world. Kripke sorta blew the whole thing open and then closed it again. It’s amazing stuff.Report

          • Avatar BlaiseP in reply to Stillwater says:

            Quine knew where to lay off logic and accept indeterminacy, especially in translation. If I wanted to express the word “Rights” in Japanese, I need two characters, KEN-RI, literally right (to do or be something) and personal-interest. But if I want to write “Authority”, curiously, it’s KEN-GEN, right and boundary.

            Language is deliciously squishy and Quine was so erudite. Nobody reads Quine without a copy of OECD standing by as a crutch. The hapax legomenon was a minor speciality. Has anyone else ever used the word holophrastic outside of child psychology?Report

  3. I want to congratulate you on a fantastic post (with which I profoundly disagree). I also want to lament the fact that I’m too deep in dissertation revisions to respond. Keep it up, mate.Report

  4. Avatar George Turner says:

    Communal property systems, or property systems that aren’t legally recognized by the government, are common throughout the Third World, which is why it’s the Third World.

    Hernando De Soto, perhaps the most profound economic thinker since Adam Smith, says the United States became obscenely rich simply because we had a workable system for real-estate that allowed both fallow land and ordinary people who had historically been locked out of the legal economy to join it. He’s also notably the first economist to figure out what capital is. ^_^

    To live without a very detailed, well understood property system that respects and describes the rights of ownership is to live in a state of transience, where what you build or own today might not be yours tomorrow, through nothing more than someone else’s desire to claim it for themselves. Under such a system a good strategy is to make sure your property doesn’t look nice enough to cause any jealousy or attract outside attention. Since someone, whether a neighbor, a politician, of the government might lay claim to it anyway, it’s also unwise to sink much money into property improvements.

    He also found that virtually all the world’s ordinary people share similar concepts about most property, but that these concepts are usually only applicable in the black market (even the real-estate black market) because Third World governments won’t recognize them.Report

    • Avatar Will H. in reply to George Turner says:

      I disagree that these things are necessary.
      The Pueblo have long held an extensive view of communal property.
      In Two Years before the Mast, Dana writes of what Los Angeles was like in the early 1800’s under the Spanish (an interesting read for all Angelinos). Their horses were kept in a common corral, and whenever you needed one, you went and got it, and put it back when you were done.
      That is, I think there are some assumptions in your statement that aren’t truly supported.Report

      • Avatar Roger in reply to Will H. says:

        You seem to be speaking past George. He isn’t saying that societies can’t exist with communal property systems. He is saying that the institution of private property is essential if the society wishes to thrive.Report

        • Avatar BlaiseP in reply to Roger says:

          What makes the institution of private property so essential, beyond your say-so? See if you can manage this on its own merits.Report

          • Avatar Roger in reply to BlaiseP says:

            What makes private property so essential is that it answers the question of who gets to decide how property is used and how they go about establishing this.

            There are myriads of ways that this can be answered. Communal. Force. Authority.

            One method is to establish a process of securing peaceful ownership via being the first to appropriate or by being the creator of a thing. With ownership comes the ability to decide how the property is used and where the benefits of ownership accrue (to the owner). This effectively aligns the interests and protection of the property with a rational owner. It incentivizes conservation, development, capital improvement, using the property for gains in utility, and innovation and experimentation.

            The ability to transfer ownership incentivizes gains via specialization and comparative advantage and builds complex networks of positive sum value creation where billions of people can work together in mutually beneficial interactions.

            The empirical data in support of property rights is frankly overwhelming. We can compare states which are similar differing on property rights and see how they thrive or fail to. The Germanies, the Koreas, China pre and post. Historians can also track which states led the way on economic progress. From the Dutch to the British to the US and so on.

            The normal state of humanity since its inception is to live for forty years or less on the equivalent of two to three dollars a day. In other words, every society for the past one hundred thousand years has led a subsistence lifestyle for the vast majority.

            Secure property rights are one essential social institution necessary for societies to break out of this Malthusian cycle. They are not the only institution of course.Report

            • Avatar BlaiseP in reply to Roger says:

              Who gets to decide, again? Is that the courts? Or you ‘n me arguing? Ownership of anything isn’t an a-priori right. It’s contestable. You want to sell me something, you can demand a bill of sale, unless I’m running a Moonlight Madness operation out of the back of my truck, fencing stolen goods, in which case, no, you will not get a bill of sale and yes I will get cash. Mere possession doesn’t give you any right to anything.

              See, I say Equal Justice Under Law. You seem to imply Equal Law Under Justice is the way this works, once again invoking the Hoary Ancients, the Historian’s Fallacy. One has to precede the other. Either Justice proceeds from Law, as I say — in which case rights are carved out of the overarching authority of the government — or Law proceeds from Justice — in which case you’re reifying Justice.Report

              • Avatar Kim in reply to BlaiseP says:

                I’m pretty sure Roger would say that the watermelon peddlers out of the back of the truck are still operating within the private property regime. Even if they’re stealing.

                … Roger, am I right?Report

              • Avatar Roger in reply to BlaiseP says:


                As I wrote in my original surfing post last year and Jason writes here, property rights are useful conventions. As the world gets more complex we build up from shared Schelling Points, to formal rules, to courts and laws.

                Suggesting justice proceeds from law is just another example of The Big Kahuna Fallacy, the error that design must come top down rather than potentially from the bottom up. When you grasp this concept, you will be enlightened, Grasshopper.Report

              • Avatar James Hanley in reply to Roger says:

                Or as many lawyers, legal scholars, and philosophers have told me, law and justice aren’t the same thing.Report

              • Avatar Will H. in reply to James Hanley says:

                Justice is the work of God, while law is the work of the legislature.
                The two are not to be confused.
                They’re not even similar.Report

              • Avatar BlaiseP in reply to Roger says:

                As James wryly observes below, let’s not conflate law and justice. You can go on applying Property Rights as a doctrinal article of faith. But that’s all it is. There’s no proof for it and all the evidence contradicts it.

                I feel a bit like those hard-nosed atheists, like Chris Hitchens, who once said Time spent arguing with the faithful is, oddly enough, almost never wasted..Report

              • Avatar James Hanley in reply to BlaiseP says:

                Hold on now, don’t go using my comment as any kind of rebuttal to Roger’s comment. Like him, I wholly agree that property rights are useful conventions. But I really don’t see how “useful convention” can be seen as “article of faith.”

                Pragmatics and faith are very uneasy bed partners.Report

              • Avatar BlaiseP in reply to James Hanley says:

                Oh, I’m only agreeing with you, James. But you Libertarians keep dancing around the provenance of law itself. Law does not proceed from Justice. Justice proceeds from law. Justice says “this matter now comes before the court”. I say, without that court, there is no justice. And all this faux archaeology about how in some Distant Hoary Past, there were no courts — that’s just Historian’s Fallacy. Reminds me of all those Mormon archaeologists come down to Guatemala, tryin’ to prove Jesus came to the Americas. They’re awfully useful, doing the spadework for uncovering these temples in the jungle — but their conclusions are all bunk.Report

              • Avatar James Hanley in reply to James Hanley says:

                Law does not proceed from Justice. Justice proceeds from law.

                Bah. Justice proceeds from theology and philosophy, and through law we try to encode some of our conflicting claims about what is just. But that doesn’t mean law proceeds from justice, either. It proceeds partly from justice, partly from privilege and power, and partly through pragmatics.Report

              • Avatar Roger in reply to James Hanley says:


                Could you please step up your game a tad please? Less rhetorical flash and more substance, por favor?

                You asked for an actual argument in support of property rights. I supplied my past OP, a hundred thousand years of history, a logical argument, and I can continue to go on for hours. This is on top of what George and Jason have already supplied.

                You’ve provided nothing but hot licks and rhetoric. James and I have given ample examples of rules and norms which developed and operated absent top down law. You just pretend the examples don’t exist.Report

              • Avatar BlaiseP in reply to James Hanley says:

                You and Carl Sagan (wiggles fingers ) “billions and billions”. Every human culture features some Societal Adam, usually referred to as The Lawgiver, who seizes power and starts farming out his brand of justice to judges. I will not accept some moozy Jean Auel Clan of the Cave Bear version of history. And that’s all you and Jason have on offer. Not an iota of citation. Bad sociology. And bad rhetoric.Report

              • Avatar James Hanley in reply to James Hanley says:

                “Truly, you have a dizzying intellect.”

                “Wait till I get going!”Report

              • Avatar BlaiseP in reply to James Hanley says:

                Heh. When anecdote trumps analysis, when doctrinal tropes become self-referential and self-justifying — well, I’ll bet you have Hegel’s Philosophy of History hanging around somewhere.

                But the destinies of peoples and states, their interests, relations, and the complicated issue of their affairs, present quite another field. Rulers, Statesmen, Nations, are wont to be emphatically commended to the teaching which experience offers in history. But what experience and history teach is this, – that peoples and governments never have learned anything from history, or acted on principles deduced from it. Each period is involved in such peculiar circumstances, exhibits a condition of things so strictly idiosyncratic, that its conduct must be regulated by considerations connected with itself, and itself alone. Amid the pressure of great events, a general principle gives no help. It is useless to revert to similar circumstances in the Past. The pallid shades of memory struggle in vain with the life and freedom of the Present.

                And thus, with Dr. Johnson’s boot against the rock, do I refute it.Report

              • Avatar James Hanley in reply to James Hanley says:


                Sigh. I’ll stop now.Report

        • Avatar Kim in reply to Roger says:

          Forgive me, but that’s rather doltish. Society can thrive rather well on fame without fortune. Certainly scientists do it all the time. (and in a lab, you’ve got a reasonably communal structure, a good deal of the time).Report

          • Avatar Roger in reply to Kim says:

            Why such ungenerous readings of my comments, Kim? Nowhere am I arguing that certain aspects of society can’t be communal. Nowhere am I arguing the all attribution or rewards must be financial.Report

            • Avatar Kim in reply to Roger says:

              Then what we’re left with is the idea that some things are better if they’re personal… but not terribly that you need “private property” to get achievement. Because fame isn’t private (or at least doesn’t need to be).

              I think it’s easy enough to say “rewards must go to those who excel” and then say “the rewards must be distributed in such a way that there is some amount of “meaning” to the groups that get the rewards.”

              (we feel a lot differently if our family gets an award, than if “your-political-party-here” gets a reward).Report

    • Avatar Kim in reply to George Turner says:

      Please stop describing Greece as a third world country. it’s insulting.Report

  5. Avatar Michael Drew says:

    Just want to be clear that my suggestion that Jonathan could use “mere” if it suited his meaning was not meant to disparage the value or good work that property rights regimes do (though I suppose that might have been his meaning). It was just meant to distinguish property rights as property protection schemes in society (usually under government) from ideas about metaphysical connections between people and stuff that makes ownership into some kind of real natural connection between a person and his belongings. Which is not to necessarily speak to the idea of property right being natural rights, since I can certainly see (and have seen) defenders of natural rights theories say that the kind of conventions that real property rights are basically just are the same things as what they view “natural property rights” to be (after all societies are part of nature, and its entirely reasonable to say that the conventions that arise within them are natural as well!).

    Anyway, the point of “mere” was just to say, “not transcendental or divine, but conventional, i.e. property rights just are arrangements among people about what expectations to meet and obligations to honor,” not “worth less than you think they are.” Property rights are exactly as valuable as they are, no more no less, for not being metaphysical or transcendental facts about the relationship between people and stuff that are independent of social decisions about that.Report

    • Avatar Chris in reply to Michael Drew says:

      I think that there is a difference between talking about property rights as conventions but recognizing their connection to a deep, perhaps innate conception of ownership, and recognizing property rights as conventions specifically to separate property and humans metaphysically. My sense is that Jason, when he’s talking about not using “mere” as a modifier of “convention” is doing so because he wants to highlight that psychological, and in a sense biological connection, without bringing in the metaphysics of it. As I said above, I think Jason’s metaphysics sneak into it in a way that I find problematic, but I think his objection to the “mere” is sound for this reason. They aren’t “mere” conventions, but conventions built on a deep psychological reality that, I think (this is where Jason and I part ways), can manifest itself in myriad ways when filtered through the lenses of history and culture.Report

      • Avatar Michael Drew in reply to Chris says:

        Yyy… sure. No problem. I don’t feel the need to to use ‘mere’ here, myself. I’ve made clear the sense in which I think it would be reasonable reasonable to use it… but no one seems to want to accept that’s what the word can mean. And I accept that it can reasonably be heard to connote more (though not if someone insists that’s not their meaning). So… Bqhatevwr. It’s no skin off my nose.Report

      • Avatar Stillwater in reply to Chris says:

        It was just meant to distinguish property rights as property protection schemes in society (usually under government) from ideas about metaphysical connections between people and stuff that makes ownership into some kind of real natural connection between a person and his belongings.

        Well, if we’re honest about things, there is no metaphysical connection between people and stuff. There’re only physical connections. And one of those connections is emotions. I mentioned this once on a thread too long ago for me to find it, but the idea that there’s a metaphysical, other-wordly connection between people and stuff derives from the fact that some people feel the emotion of possession so strongly, and feel so justified in their emotional commitment to possession, that the only way to account for it (from their pov surely) is to reference spiritual or metaphysical (otherwordly) properties.Report

    • Avatar George Turner in reply to Michael Drew says:

      Well, as evidence of their innate existence, we can all make up property quizes where we’ll give most of the same answers just based on our intuition, sense of fairness, and sense of ownership. In the US the property laws follow our intuitions quite closely because the system was built by judges and juries resolving both simple and complex disputes based on those intuitions, along with previous case law – which traces back to another jury using its intuition.

      For example:

      I own my yard, and thus I own the dirt in my yard.

      A) If I got out in my yard and dig up some dirt and put it in a box, is it still my dirt?
      B) If I sell you the dirt, shipping the box Fed Ex, does it become your dirt even though it was part of the yard that I didn’t sell to you?
      C) If my neighbor comes and steals some dirt from my yard to put on her garden, does it become her dirt or do I still own it?
      D) If I secretly put some of my best dirt on my neighbor’s garden (to help her tomatoes which she will invariable give me), is it still my dirt or has it become part of my neighbor’s real property?
      E) If we have a flood and my good topsoil erodes onto my neighbor’s property, does it become their property? If my garbage washes onto my neighbor’s property, does it become their garbage?
      F) If my cat keeps going over to my neighbor’s property and poops on their car, does the poop belong to me or them?
      G) If my llama poops on their compost pile, does the poop belong to me or them?
      H) If my neighbors keep feeding my cat and it decides to move in with them, is it still my cat?
      I) If my neighbors keep feeding my kids and they decide to move, are they still my kids?
      J) If my dandelions start sprouting up in my neighbor’s yard, are the trespassers my dandelions or my neighbors?
      K) If my tree falls in my neighbor’s yard is it my tree or their tree?
      L) If some of my soil blows away in a windstorm, is it still mine?
      M) If a big decorative rock in my yard rolls off the property in a rainstorm, is it still my rock?

      There are thousands of such questions decided every day by judges and juries, and we’ve been doing this a long time. We think about each case and reach a conclusion, and we tend to reach the same conclusions repeatedly. On most of the above questions, your mind probably responded with sets of exceptions, caveats, and qualifiers, as it can solve such questions all day long and twice on Sunday, as if we’d been solving such disputes ever since we learned how to talk.

      To me property rights are a complicated, interlocking structure, much like a car. We can talk about them philosophically (should cars have engines? Why isn’t the engine in the passenger’s seat?) or we could recognize that every time we have to dig into the mechanism to fix or modify something, we wrap our minds around the problem at hand, come up with a workable, sensible solution, and implement it. There can be many different makes and models of car, and some work much better than others, but to work at all requires answering hundreds of questions (dispute resolution, determination of ownership), and in the case of property those questions are usually answered from our sense of how property is suppose to behave as both a physical and a mental construct.Report

      • Avatar Michael Drew in reply to George Turner says:

        We can talk about them philosophically (should cars have engines? Why isn’t the engine in the passenger’s seat?) or we could recognize that every time we have to dig into the mechanism to fix or modify something, we wrap our minds around the problem at hand, come up with a workable, sensible solution, and implement it

        Totally with you here.Report

        • Avatar George Turner in reply to Michael Drew says:

          I sometimes wonder if the constantly recurring idea that we don’t need property systems stems from our early childhood when ownership categories were trivially simple. Any object was either mom’s (and thus ours), dad’s (and thus ours), or not mom or dad’s (and thus still possibly ours), except for certain forbidden objects that we weren’t supposed to touch.

          All of us start out in a world where all objects are equally “playable with” unless they get yanked out of our hands. Then we encounter other kids in day care, an early introduction into future society, and all the toys seem communally owned, with rights determined by “who’s playing with it now” or “who’s turn is it?” The idea that that is how ownership and possession is supposed to work probably sticks in the back of a lot of kids’ heads. You often see almost exact duplicates of day care property systems seriously suggested as workable “solutions” to capitalism. That has to be an expression of our inner three-year olds.

          Then there’s the “it’s mine! everything is mine!” phase, often terminated through violent peer conflict and severe punishment from “the authorities.” I think my cat might be stuck in this phase, perhaps because I can’t punish a cat for acting like a cat. Perhaps some of the rejections of capitalism stem from people who lost that argument with an unusually large and aggressive todder.

          If we grow up and go on to develop for more complex and nuanced conceptions of property, it’s probably because it’s extremely vital for a complex tool-making social animal to do so. Without shared conceptions of how property works, we’d all act like kids and claim the best tools just like a small child claiming toys. But adult conflicts are often fatal, and enforcing the notion of ownership is vital to social cohesion (and personal longevity). MIT professor Steven Pinker writes that vengeance probably evolved as a way to enforce property rights in tribal societies, where absent police and courts the only thing that kept your bowl safe was the shared knowledge that if anyone stole it you would pursue them to the ends of the Earth, bash their skull in, and eat their heart.

          Interestingly, many animals also have concepts of ownership and property rights. Birds defend their nests, European rabbits defend their warrens against outside aggressor bunnies, and the aggressors seem to know that they’re trespassing. Rabbits also claim objects, scent marking them to say “this is mine” in a way different from marking a territory. Squirrels are notoriously vocal about defending their property rights to both a tree and their store of winter nuts. From an evolutionary standpoint, any animal that builds something (a nest, a den, a beaver dam, a stockpile of winter food) needs to form a mental relationship to such objects so they are defended, and needs that relationship to extend to such objects possessed by other members of its species so there’s an overall benefit to building instead of just more reasons for intra-species fratricide.

          Regarding animal instincts, one of the interesting insights Hernando De Soto had in bringing black market property systems into a legal framework was a way to figure out what the actual land boundaries should be (since they weren’t formally recorded on any deeds). Called in to consult on the problem in another country, and noting that everyone in such a transition has a huge incentive to make false claims, he observed that the dogs knew the property lines and would not lie. When you cross a property line, a different dog starts barking.Report

  6. Avatar MikeSchilling says:

    I don’t find substantial to anything to disagree with here. I do want to make a parallel:

    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.

    Both attempted to impose, by force, an alien concept of property, which led, as you say, to dehumanization, privation, and great suffering. No question. If there’s one thing we should have learned from the horrors of the 20th Century, it’s what happens when a government attempts that kind of transformation of an unwilling populace.

    What happened to Native Americans (and aboriginal people in general) can be viewed through the same lens: combined with occupying their land, imposing on them an alien concept of property, which resulted in those more familiar with it owning pretty much everything worth owning (odd, that), and leading once again to dehumanization, privation, and great suffering for the previous owners. (Though, once again, the Trail of Tears was waiting for the Indians who did master the new game.)Report

    • Avatar Chris in reply to MikeSchilling says:

      The Seminole Wars, too. Particularly when the Mikasuki actually started playing the property game.Report

    • Avatar Will H. in reply to MikeSchilling says:

      With NA peoples, you’re never talking about one single thing.
      The Pueblo tradition teaches that the earth owns the people who are on it, and not vice versa.
      That a person may own land is a truly alien concept.
      From the cave of the womb our bones are brought forth, and into the mountain they return.

      The issue of reparations seems ill-advised to me.
      Some manner of consideration, like equal protection maybe, or not requiring children to be removed from their homes to attend school, would be nice.Report

    • Avatar James Hanley in reply to MikeSchilling says:


      Not that it did the Cherokee any good, but at least the Trail of Tears was recognizable as a clearly illegal act. While the Cherokee themselves did not benefit from this recognition, it did at least represent a forward ratcheting of our recognition of their property. Sometimes forward progress occurs in steps so small as to be barely noticeable, and certainly not by themselves in any way satisfactory.Report

  7. Avatar Tod Kelly says:

    First off, a really great post – one of your better ones, which is really saying something.

    I think my disconnect with property rights comes many steps after what you have laid down here. I agree with you totally that property is a good thing, and that it should be allowed to everyone, and that refusing people to own property leads to bad things.

    But then somewhere along the line we get to people like this guy, who I am lead to believe is being held up as a poster child for the movement to make a new constitutional amendment guaranteeing property rights, and you start to lose me.Report

    • Avatar Jason Kuznicki in reply to Tod Kelly says:

      Thank you.

      I am embarrassed, however, in that I see I never replied to your question about Harrington. (I hate when I get asked a question, and I mean to write something, and then I forget about it… I should probably take the opportunity at some point, if it didn’t seem to be humblebragging, to just ask everyone if they have questions they’ve asked me that I’ve neglected to answer. Especially if I’ve promised I’d get back to it.)

      Anyway. When Harrington acquired the land, were the government’s water rights in place? If so, he clearly acted wrongly, at least given the facts as you and I know them. His purchase of the land did not include purchase of the water. As the owner, it was his responsibility to know these things, and apparently he didn’t. Such divisions may strike people as strange, but only if they’ve never read the fine print on a real estate deal. As a business owner, he should be ashamed of not having done so.Report

  8. Avatar Michael Drew says:

    George & Stillwater –

    I would be careful about generalizing about people’s subjective experiences with the concept of property. Where they’re like what we think they’re like, there we’re right that they’re like that. But where they’re experienced differently, there they’re different.

    Those various subjective experiences produce a whole variety of property claims of varying natures and intensities, and George is right that a society has to respond to mediating them in some way or other. And doing so more peacefully and predictably creates all kinds of shared advantages. So, luckily, we’ve figured out ways to do it like that.Report

    • Avatar Stillwater in reply to Michael Drew says:

      The only generalization I’m making about people’s subjective experiences is that if they claim there’s a actual metaphysical link between themselves and some object, they’re wrong.Report

      • Avatar Jaybird in reply to Stillwater says:

        I am 100% in agreement with that point… except there is part of me that fears that the follow up to “seriously, you don’t have the right to X” will be “therefore, you don’t have any standing when I start acting like I have the right to X”.Report

  9. Avatar Rod Engelsman says:

    As a quasi-Georgist I have a lot of thoughts spinning around this tired old brain on this subject. Primarily on the subject of Land vs. created Property. But frankly, I can’t do it justice in a comment so perhaps I’ll start on that GP I promised Roger a few months ago.

    Suffice it to say I agree with much of what you say here, Jason, but I’m nervous about where this line of reasoning takes you.Report

    • Avatar Jason Kuznicki in reply to Rod Engelsman says:

      And I have a bit of sympathy for the Georgist position, too, by way of Herbert Spencer, who entertained it when he was young and radical. But just going by historical experience, the way to preserve land appears to be to find an individual or a well-defined small group who will fight to keep it useful over time. Typically that group will be not any larger than a municipal government.

      If we grant the truth of Georgism, and if we suppose that we as the communal owners of all the earth want to preserve our birthright — isn’t it in our interests to break it up into small parcels and give it to individuals?

      (Incidentally, did anyone in world ever have an apter name than “Henry George,” the “home-ruling farmer,” given his ideology? His only apt-name rivals are Christopher Columbus, Isaiah Berlin, and Learned hand — respectively, the Christ-bearing colonizer; Western Europe’s prophet of doom and redemption; and, well, a learned hand.)Report

  10. Avatar James Hanley says:

    An excellent post, Jason. I appreciate and agree with the very pragmatic understanding of how humans use conventions to satisfy natural urges and needs.

    It’s just a quibble, but I do wonder about your statement about eusociality, in which you say entomologists and political scientists assure us humans aren’t eusocial. It’s something I’ve been thinking about lately, as I have been thinking specifically about the significance of sociality. E.O. Wilson has a new book out, The Social Conquest of Earth, and I think he does say humans are eusocial. I left the book at home, so I’ll have to wait until later to see exactly how he phrases it. And it seems to me that we mostly fit the definition, depending on what parts of the definition are necessary elements.

    It doesn’t mean we’re termites, but our complex sociality does seem to be what has allowed us to–like the insects–take over such large swaths of the continent.Report

    • Avatar Jason Kuznicki in reply to James Hanley says:

      Thanks. Eusociality classically requires that there be designated breeding and non-breeding castes, and that these are fixed for life. No mammals have this type of social organization.

      I guess you could point to monks and nuns, and gay people, but even there we have plenty of exceptions. Or you could point to those heroic governments that have forcibly sterilized a segment of their population. (Is that “eu-” sociality?)Report

      • Avatar James Hanley in reply to Jason Kuznicki says:

        That’s specifically the element that I was thinking about. Is it a necessary condition that there be fixed and non-permanent breeding castes (one of my best friends is an entomologist whose office is just downstairs from me–I really need to ask him), or is it sufficient that non-breeders (even if they are only temporary non-breeders) participate in child-rearing, too?

        I’m not asserting you’re wrong, just that I’m wondering about the rigidity or flexibility of the definition, and what the term is for human-style sociality if it sits just outside the boundaries of eusociality.Report

        • Avatar James Hanley in reply to James Hanley says:

          From a review of Wilson’s book.

          To qualify as eusocial, in Wilson’s definition, animals must live in multigenerational communities, practice division of labor and behave altruistically, ready to sacrifice “at least some of their personal interests to that of the group.”…

          As Wilson sees it, human beings are eusocial apes,…

          Yet our eusocial nature, Wilson emphasizes, is nothing like that of the robotic ants. It developed along an entirely different route and is bound up with other aspects of our humanity—our anatomy, our intellect and emotions, our sense of free will.

          So Wilson is using a much looser definition of eusociality. I’m not quite sure how to evaluate that.Report

          • Avatar Roger in reply to James Hanley says:

            I’ve read most of what he has written since Sociobiology. He is at his best when he focuses on ants.

            For the best debate on altruism, cultural evolution and group selection ever, a highly recommend this debate between Steven Pinker and the rest of the world on Edge. Five star reading.


            It (Pinker and the dozen or so rebuttals) gets into what a mess the experts have made of the terms altruist and selfish. One choice quote from the debate…

            “Other meaning-chameleons that sow similar confusion are moral, altruistic, and especially selfish. For example, using the definition of selfishness and altruism that biologists use, a loving and self-sacrificing mother is acting selfishly, while a drug addicted mother who starves her children to give all her money to her dealer is an altruist.(i.e., she is lowering her own fitness in a way that increases a nonrelative’s).”Report

  11. Avatar Kazzy says:


    What evidence is there that reparations for slavery inherently would harm African-Americans? It seems that if a given plan would, that points to a flaw in the plan, not necessarily in broader attempts to offer reparations.

    While I realize your post is about property rights, I wonder if there are ways to consider reparations that aren’t wholly about property. For instance, what if there was a mechanism to ensure that X% of Congress were African-American. I don’t know what that mechanism would be, of course, but I’m sure one could be worked out that would not be harmful to the group you seek to help.Report

    • Avatar Will Truman in reply to Kazzy says:

      I think the degree of disruption and resentment caused by earmarking congressional districts for inheritors of a particular lineage or race would far outweigh the benefits of a having a few more representatives but still a significant minority.

      If I were to look at not-directly-monetary reparations, it would be through all-expenses-paid scholarships. This day in age, though, that (or any reparations) would be complicated by the fact that ancestry has muddied with time.

      This may sound glib, but man do I wish they had gotten their 40 acres and a mule or more at the time. We doubled down on the egregiousness of our sins when we put them in legal-rights limbo for a century and never embarked on a plan to actually bring them into the economy.Report

      • Avatar Kazzy in reply to Will Truman says:


        The problem I have with your response is that the status quo is one that causes a lot of disruption and resentment for a number of people. I’m tempted to use the word privilege, but I know how inflammatory that word can sometimes be.

        What I mean is this… my hastily drawn up suggestion would likely amount to trading one form of resentment for another. Rather than having an underclass of black folks feeling resentful, we’ll have some other group feeling resentful. While ideally it would be good if no one was left feeling resentful, if someone has to be, I see no reason why we can’t make it the white folks this time.

        But that isn’t how it’d play out. Instead, we’d look at the brand-new-resentment being formed, acting as if there wasn’t already resentment present, because that resentment is largely ignored. And we’d conclude that the plan led to a rise in resentment, when it is just as likely that the total amount of resentment would remain unchanged.Report

        • Avatar Will Truman in reply to Kazzy says:

          I’m not necessarily advocating the status quo. Just that your suggested solution is a particularly bad one that would cause a lot of ill-effects without significantly helping the beneficiaries.

          If we wanted to focus on something, it would be free-ride scholarships for those that want to go to college and have the academic chops to do so. I think one of the strongest cases for affirmative action is for slave descendants and tribal descendants. Even that is tricky, but I think the cost-reward would be better. Yeah, a lot of resentment, but it would be accomplishing something with greater returns (in my opinion) than a few more black legislators.Report

          • Avatar Kazzy in reply to Will Truman says:

            First, let me say that the initial plan was more of an example of a non-monetary form of reparations than a serious policy proposal. It is rife with problems, including those you state. So I’m certainly not going to fall on my sword for it. But I, personally, don’t think, “Well, white people won’t like it,” is much of a counter-argument to a plan designed to balance out past and ongoing oppression and injustices. We didn’t care much how black people felt/feel about a number of policies that adversely affected/affect them, so it feels a little disingenuous if the feelings of the potentially aggrieved group suddenly become high priority. I do realize, though, that you were likely offering your response as a practical drawback and not necessarily as a principled objection.

            As a teacher, focusing on education is always going to give me the warm-fuzzies. Taking pro-active steps to improve the educational outcomes for historically marginalized groups would likely result in huge gains. I wouldn’t limit it to the college arena, but would also like to see funds aimed at other areas of education.

            I think part of the problem is that we do have programs that are de facto intended to improve the conditions for black folks and other marginalized groups, but for one reason or another we can’t explicitly say that is their intention (e.g., we’re improving urban schools… not majority black schools.), which I think ultimately undermines the efforts. One of the reasons we can’t say that is their intention is the aforementioned resentment. And, ultimately, stasis sets in, with the marginalized group feeling continually marginalized because they see no explicit efforts made to help them.

            How much of a difference would it make, to blacks and whites alike, if the government enacted a scholarship fund like the one you describe and said, “We’re not doing this as part of a war on poverty… or as part of a broader educational initiative… we’re doing this because we need to start making right some of our wrongs, and offering these people who have long been denied equal access to education through one means or another an opportunity to go to college for free is one way to do that?”Report

            • Avatar Will Truman in reply to Kazzy says:

              I don’t think “white people won’t like it” is a dealbreaker. I mean, it can’t be! But I do think that the good done by whatever we’re doing needs to be stronger than the blowback that occurs. In other words, the resentment would be a part of the equation. In the case of representation, I think it would accomplish little or nothing because black reps would still be in a distinct minority. That lack of upside makes the downsides more important. It increases the likelihood, in my view, that more harm than good would be done.

              There’d be a lot of blowback on my scholarship proposal, but I would consider it less important because I think it would place a lot more in the “pro” column.

              (Now, I’m not sure if I am completely sold on the education idea. But it’s something I’d definitely consider before I’d want to earmark representation.)Report

              • Avatar James Hanley in reply to Will Truman says:

                I don’t think “white people won’t like it” is a dealbreaker.

                It is for the Republican party!Report

              • Avatar Kim in reply to James Hanley says:

                oughta frame this and show it to M.A. when he wanders back. 😉Report

              • Avatar Kazzy in reply to Will Truman says:

                That’s fair. When I initially thought of the representation idea (and I literally thought of it as I typed it), I imagined some form of special elections being held exclusive to black candidates if the magical number wasn’t reached via traditional means. But I really have no idea if there is actually a feasible way to do it.

                You’re right that the benefits would need to be weighed against the harm. But, to me, “White people not liking it,” is pretty low on the harm list. Furthermore, white people having to deal with something they might not like… well, I’m tempted to argue that is ultimately a benefit.

                But then again, I’m a jerk who limits the number of dog toys available to 4-year-olds because I think their is value in them learning to work through disappointment. I often say I’m not doing my job if they never ever cry.Report

    • Avatar Kim in reply to Kazzy says:

      Got your next crazy question, if you’re interested in one from the peanut gallery…
      “If your private property asserts the right to own itself, do you have the moral authority to deny it?”
      You ask hypotheticals. I pose problems in need of a solution. 😉Report

      • Avatar Kazzy in reply to Kim says:

        There actually IS something interesting there, though I’m not quite sure how to frame.

        Basically, if your toaster came alive, could you rightfully insist that it remain on your counter and continue toasting if it now preferred some other lot in life?Report

  12. Avatar Kim says:

    oh, we had a plan alright. it included arbitrary and capricious slavery through the prison system.Report

  13. Hi Jason. Thanks for the thoughtful response. I’ll need to mull much of it over to respond fully, and I’ll certainly admit that my post had some underlying assumptions that weren’t fully articulated. Perhaps I should expand on them sometime.

    Two quick things that I wish to note right away:

    “That is: Property rights are a set of conventions that conform relatively well to the nature of economic activity.”

    I completely agree with this. I think the notion of property rights is incredibly important, and I’m supportive of the movements to strengthen them in Canada (should it be in our Charter? maybe, maybe not… but I lean towards yes).

    Second, you argue that property rights do not dehumanize us, and you link to my post with that sentence. However, I don’t argue that they do; I wrote, “Our ownership of land – collective or individual – makes us dehumanize others.” Now, I should have written “…can make us dehumanize…” or “leads us to dehumanize…”, but even in my original, somewhat crude, wording, I don’t place the blame on property rights. I place the blame on people… on us.

    This is where I become concerned with a strong and seemingly growing strain in current political thought. Property rights, in some quarters, are becoming so cherished, so fetishized, so worshiped, that they are used for the purposes of exclusion and for permitting harm. My post was definitely more about political theory than about practical application. It was pushing back against what the cult of property rights (if I may be a bit more inflammatory again).

    Perhaps you think that there is insufficient difference between saying that property rights dehumanize us and saying that property rights cause us to dehumanize others. That’s fair, but I think we’ll just have to agree to disagree.

    (And I haven’t had a chance to go through the comments here, so apologies if I’m repeating what others have said – and likely said better).Report

  14. Avatar Major Zed says:

    May I offer a different analogy? Building codes and practices. In a sense, they are mere arbitrary conventions, capable of being changed by whim of the ruling authorities and the individual builder, respectively. But if you ignore things like plumb&level, insulation on wires, avoiding cross-connects in your water system… there will be adverse consequences. Similarly with rights to property; sure you can go ahead and change them. Doesn’t mean you will like what happens next. That’s because they interact with a non-arbitrary real-world substrate.Report