by George J. Dance
Property is a relation between some people ('owners'), some things ('goods' or 'resources'), and, by implication, other people. Property rights are either liberty or claim negative rights that include rights (1) to appropriate things, or acquire them as property, (2) to use them as goods (
usus), and therefore (3) to use them as resources to create new goods, which are also the creator's property (
fructus). They comprise both basic property rights (to acquire and use things at all), which look inalienable, and derivative ownership rights to specific things, which are fully alienable. Because ownership rights are alienable, they include rights (4) to get rid of the property, either by destroying it, including consuming it or using it up to make something else (
abusus), or by giving ownership rights to it to someone else.
Everyone has the basic property rights needed to be an owner, but only owners have derivative ownership rights. Because the latter are rights of owners only, it follows that there is an owner's right to exclude non-owners from using those specific things if she wants to.
Back in 1689, John Locke theorized that "Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself."[1, 27] In other words, while basic rights to negative liberty were held by everyone, only one person had the derivative rights over her own person (which both explains and justifies the idea of asymmetrical ownership rights).
Since people have to eat to live, their rights must include a right to eat, and therefore a right to gather food to feed oneself: "And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him."[1, 28] Since a right to feed oneself is a right to consume specific goods (meaning both to acquire, use, and destroy them, and to exclude everyone else from using them), it is a property right, which shows the necessity of property rights to some goods.
Locke did place four conditions on appropriation of things. The first three were necessary: The thing had to be "
in the common state nature provided it," in other words not already owned;[1, 27] the owner had to have "
mixed his labour with" (used) it;[1, 27] and
no one could appropriate more than she could use.[1, 33] Without satisfying those conditions with respect to appropriating any specific thing, one could not become its owner.
The fourth, when added to the above, looks instead like a sufficient condition: if one's appropriation of a good satisfied it, one would be unquestionably an owner; "for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is
enough, and as good, left in common for others."[1, 27]
Since people have been eating, and letting others eat, since the dawn of time, one can place the first implicit property rights that far back. However, the first explicit property rights were probably communal. Robert Lefevre theorizes that, in primitive tribes, the food "would have been for the use of the entire tribe."[2, 13.] Tribal ownership persisted when hunters became nomads: Tribes followed their herds, a property right they enforced against outsiders; kills were probably divided among the whole tribe by its patriarch.[3, 16] It probably was the first type of property during the agricultural revolution (10,000 B.C.) as well; but given evidence that recognizing individual rights to a crop leads to higher productivity,[4] and given the enormous increase in productivity during the revolution, it is reasonable to think that individual or family ownership began to catch on then.
The increasing prosperity attracted the notice of the nomads, who began raiding and plundering agricultural sentiments. Beginning around 5,000 BC, some got the idea of conquering agricultural lands and settling down as rulers, managing the inhabitants like a herd. Von Rustow calls this process "superstratification," and sees it as the emergence of the first states:
Superstratification produced, for the first time in history, human social groupings that, in their inner structure, were based on bloodshed and violence.... For the first time outer morality, the morality of violence, penetrates, domineeringly and determinedly, into the interior of a social body.... [As Nietzche wrote:] 'The state originates in the cruelest way, through conquest, through the production of a race of drones.'"[3, 35-36]
Not surprisingly, violence and blooshed invaded the sphere of property rights as well. First, the conquerors took over existing property by force and became the new owners. Second, they established property laws backed by a police power.
This historical sequence shows that ownership rights do not necessarily imply a right to use violence and bloodshed (since the first has existed without the second). Before the coming of the state, as Lefevre notes, whatever enforcement of property rights there was, played little if any role in their protection: "as properties multiplied, opportunity for theft far exceeded the ability of physical defenders, both in time and numbers." Property rights were mainly supported by religions: "Non-trespass of private property became one of the earliest taboos, substituted for still earlier taboos against tribal trespass. Here is the early root of the Golden Rule, and even of the late development of the Decalogue."[2, 7].
Religions are still the major support for private property rights in some communities, the pacifist Amish communities being a good example. Even where the state does enforce property rights, as Lefevre also points out, its violence and bloodshed play but a minor role in protecting them:
What is not easily grasped is the fact that ownership of property and its retention in private hands are dependent on understanding and belief, and not upon force. The only real protection we have arises from the unwillingness of individuals to commit trespass, and not upon the willingness of certain men, hired as a constabulary, to pursue those who have violated property rights, in order to bring restitution, or to punish the offenders, or both.[2, 9]
Notes
[1] John Locke, The Second Treatise of Government (edited by C.B. McPherson). Indianapolis, IN, & Cambridge, UK: Hackett, 1980. Print.
[2] Robert Lefevre, The Philosophy of Ownership. Rampart College, 1974. Print.
[3] Alexander Rustow, Freedom and Domination (translated by Salvator Attanasio; edited by Dankwart A. Rustow). Princton, NJ: Princeton University Press, 1980. Print.
