Is Property Theft?

Is Property Theft? was originally written by Less Antman and published on his blog, Anarchy Without Bombs March 7th, 2010 . The following is an updated version that Antman has graciously provided for C4SS.

“Property is Theft!” was the battle cry of one prominent French anarchist in the 19th century. “Au contraire, mon frère,” retorted another. “Property is Liberty!” “You’re both wrong,” said a third. “Property is Impossible!” How such people got along with each other is amazing. More so, since it was the same man, Pierre Proudhon, who said all three.

All anarchists support property rights, including those who oppose property rights. And all anarchists oppose property rights, including those who support property rights. Context is everything. So are definitions.

Property is Theft

Proudhon was no fool: He recognized the irony of that statement, for in the process of condemning property, he was confirming it. Without the concept of property there can be no concept of theft. So let’s try to figure out what he might have really meant.

When Proudhon wrote these words, far and away the most important form of property was land, and most ownership of land was the result of arbitrary claims enforced by the ruling government rather than personal homesteading or voluntary transfers traceable to a personal homesteader. In short, most property at the time was stolen.

Thoughtful anarcho-capitalists concede this point, and insist they only support homestead-based claims, thinking they have addressed the entire anarcho-communist objection to private property. They have not. For another fundamental point is that owners of land were considered to have the exclusive right to determine what happens to everything and everyone on their land. And some anarcho-capitalists defend that point of view. Oddly, many of them defend this view of property rights as a logical outgrowth of the principle of self-ownership.

Self-Ownership

As I’ve noted before, my favorite definition of anarchy comes from Roderick Long:

Other People Are Not Your Property

I’ve yet to meet an anarcho-capitalist who objects to this formulation. Nearly all of them also agree with Thomas Jefferson’s formulation of the rights of man in the Declaration of Independence, where he states that the rights to life, liberty, and the pursuit of happiness are unalienable (which is an acceptable variant of inalienable, regardless of what you’ve heard), meaning that they are “incapable of being repudiated or transferred to another.” [No, “uncapable” is not an acceptable variant.]

But if “Trespassers Will Be Shot On Sight” is a valid assertion of property rights by the owner, then it is clear that self-ownership isn’t going to get you very far: your unalienable rights only exist as long as you can find a spot nobody else owns, at which point you can be immediately declared an illegal alien. Yes, of course, I might shoot someone because they are a credible threat to my life, but this is true whether they’ve threatened me in the home I own, the apartment I rent, the hotel where I’m staying, or the restaurant where I’m eating: it has nothing to do with my being the owner of the property.

Proprietary communities are another extraordinary application of extreme propertarianism. Defenders of these sometimes assert that any rules can be set and enforced, so long as the property was legitimately homesteaded or transferred. Again, anybody supporting this who claims that self-ownership is unalienable needs to consider how empty they’re making this principle. I can say for certain they’ve never had to deal with the management of a co-op or condo association.

Property is Liberty

However, I come not to bury property rights, but to praise them. Proudhon’s later pronouncement recognized that the claims of private property owners were a bulwark against government violations of life and liberty. I think we need to go further: property rights have proven to be an indispensable way of reducing social violence in general. As James Payne has documented in A History of Force, the world has been getting more and more peaceful over the centuries, and an increasing respect for property rights is probably one of the reasons. John Hasnas has written (PDF) an excellent account of how law developed in pre-Norman England, with property rights arising as an effective alternative to blood feuds. And Bruce Benson, in his many studies in The Enterprise of Law: Justice Without the State, has identified property rights as a characteristic of all the legal systems he has seen develop in societies without central planners. When anarcho-capitalists are asked for historical examples of their societies, they usually pick multi-century examples such as Celtic Ireland and Viking Iceland, while anarcho-communists point to short-term experiments such as the Paris Communes and Spanish Revolution. It does appear that anarchist societies which respected property rights lasted a heck of a lot longer before failing. Alas, like virtually every government in history, virtually every anarchy in history was of finite duration. More on that shortly.

Property is Impossible

The Hasnas piece is especially instructive, because he notes the limits on property that naturally arose. Easements are one obvious example: if you own a piece of land, and I acquire, even by legitimate homesteading, all of the land surrounding yours, I don’t have the right to effectively imprison you by denying you access to my land to get out. It would be useless to own the ground but not any of the space above the ground, yet I can’t own everything above the land up to the end of the universe (I still wonder what exists 1 mile beyond the end of the universe). I can’t exclude air and light going onto my property, and forbid all molecules that I consider to be pollution (especially now that so many think carbon is a pollutant). Absolutism on property quickly becomes absurd. And it is all because we look at property improperly, trying to derive a single set of rules for all situations from first principles, when property is, in fact, a problem solver that self-owners adopt for the purpose of living in peace and harmony with each other.

A Bundle of Rights

Property is not a single right, but a bundle of different rights that can be unbundled when desirable. The 2009 Nobel Laureate in Economics, Elinor Ostrom, who died earlier this year, performed the hard work of determining how real people have solved problems involving common pool resources that resist both government and private property solutions. She discussed at least 5 different categories of property rights: access, withdrawal, management, exclusion, and alienation, and emphasized that it clearly isn’t “all or nothing.”

One can make even finer distinctions. If I homestead property to build a house, that might include a right not to have loud noise disrupt my sleep, but if I homestead property to build a factory, that right might not exist. We can look at my homesteading property for growing food, another might use the same property for hiking, another as a travel route to the other side, and as long as the later uses don’t interfere with the earlier ones, each has homesteaded a right to the same property. Granted, homesteading a location for a personal residence should provide more of a right to exclude others. Still, reason must prevail.

We homestead property to the extent we are using it and in the manner we are using it, and we abandon our claim when it becomes clear we have stopped using it (as Bill Orton has suggested, much of the difference between ancap and ancom theories of property can be described as how “sticky” property is after homesteading).

Once we stop treating homesteading as granting total and permanent control over property merely through the act of mixing a little labor with it or fencing it off, we expand the number of people who support property rights enormously. Even anarcho-communists support possession, a right not to be violently dispossessed of property so long as a person is using it. And while many ancoms are infuriatingly vague about the length of time a person can stop using property before it is considered abandoned, and why lending property is okay and transferring property is okay, but lending property in exchange for a transfer of property (renting) is not okay, they’re not so insane as to argue that a person who leaves his bed to go to the restroom at night has abandoned his bed and left it open to claimed by another, as some have charged.

Similarly, one of the most well-known common law precepts in the relatively sticky property world we live in is “possession is nine points of the law,” and while it may not have been literally true in statute, it did and to a great extent still does represent the common sense of the average person in the Anglo-Saxon world. The accepted legal principle of adverse possession derives from it, and legal scholars have referred to it over the centuries as a valid idea if not a mathematically literal statement. So let’s not go around claiming the anarcho-communists are spewing pure drivel when they talk of possession rather than property.

Furthermore, even to the extent property rights are legitimate, dispute resolution over property cannot be territorially based, because that means begging the very question. You can’t do that on my property! Who says? The judge says! Which judge? The judge I selected for all disputes involving my property! Who says it is your property? The judge! Which judge? The judge I selected for all disputes involving my property! I want a different judge! You have no choice, since you’re on my property! According to whom? The judge! Which judge? The judge I selected for all disputes involving my property!

Sustainable Anarchy

Anarchists are usually treated to a catch-22 when trying to defend the practicality of our views, by people asking for historical examples. If we point out that there hasn’t yet been a complete anarchist experiment, that is treated as proof of utopianism. If we provide clear examples from the current world, such as in Hasnas’ excellent The Obviousness of Anarchy (PDF), all our examples are dismissed because they are occurring within a society that still has a government (even when its existence has no credible connection to the examples). And if we provide historical examples, of which there are several, of reasonably close approximations to what we propose, we’re asked why they no longer exist.

Based on their great longevity, I think experiments in anarcho-capitalism have proven more successful than those under anarcho-communism. But I think the anarcho-communists have the answer to why the former still eventually failed: concentrations of power are dangerous even when they result from voluntary behavior. In both Iceland and Ireland, voluntary law and private property prevailed for centuries, but the acceptance of Christianity and, more importantly, of the tithing of money to the church, led to increasing concentrations of wealth in the hands of those overseeing church operations, and what was voluntary became coercive once that concentrated wealth was used to project violent power.

Thus, it is right to question hierarchy in all of its forms, including landlord-tenant relationships and employer-employee relationships. That doesn’t mean declaring them illegal, but it does mean being uncomfortable with ALL imbalances of power and addressing the reasons for them. At present, enormous amounts of land are closed off to homesteading, even within cities, and both licensing and regulation are used to destroy countless opportunities for self-employment. Intellectual property laws are used to prevent people from using their own tangible property based on their own knowledge, and the only people who can afford to enforce these laws are the wealthiest because of a monopoly legal system that is outrageously costly to use. Get rid of these restrictions and the imbalances of power blamed on capitalism become immensely smaller.

And if you pay attention to the words of the most intelligent anarcho-communists instead of strawmanning their views, you’ll discover that the methods they propose to get rid of the non-violent hierarchies they oppose are non-violent and completely consistent with a free market. As I see it, we are not only allies on the most important issues of our time, such as military intervention, drug prohibition, corporate welfare, and the licenses, regulations, and taxes that destroy the opportunities of the average person, but we are even allies against hierarchy. David Friedman, whose The Machinery of Freedom (PDF) was the book that converted me to anarcho-capitalism (although I now prefer to call myself a market anarchist, common law anarchist, or just plain anarchist), made it clear that he strongly preferred a society of individual business owners rather than large corporations, and saw extending free markets as the best way to achieve that.

In anarchy, networks replace hierarchies as tools for organizing society. Similarly, I see prices replacing bosses, as we coordinate activity through the price system rather than by having people who give orders and people who obey them. But, in addition to that, we need vigilance against imbalances of power when they develop, even when the result of voluntary activity. Boycotting businesses that treat workers poorly or use market power to restrict consumer choice is part of maintaining a free society I switched from an Apple iPhone to a Google Android for that very reason). Ostracizing wealth accumulators who do nothing to help the less fortunate and praising those who use wealth for the benefit of society are also parts of it.

I especially like the idea of goodwill as the ultimate currency, as William Gillis wrote in 2009 on his site, Human Iterations. In an anarchist society, the rich never forget that they cease to be rich if the rest of society chooses not to recognize their property claims: the moment you claim the right to more than what you can personally control, you are relying on other people to honor your claim. So be nice to people.

To Serve Man

Okay, time for the anarchist cookbook. I believe that property is a problem solver, a useful tool for achieving social peace and economic efficiency that benefits society enormously. However, it is a useful social convention, not an absolute right derivable from self-ownership: there is no reason that a person born in the year 2100 should have fewer rights than a person born in the year 2000, but if all the world becomes private property, and property owners can establish all the rules for their property, then every person born after that date will be born a slave, and self-ownership will become a joke. Moreover, the limits on property rights have already been acknowledged in common law, and ancaps need to abandon the cartoon version of contract law, and learn about duress, undue influence, and adhesions: established common law concepts that go beyond the “well, he agreed to it” view of contractual obligations. We’ve modified contract law enough in the US to recognize that employees have the right to quit their job even if they signed a multi-year contract (except for those who join the government military), and debtors can have their obligations cancelled in bankruptcy and never end up in prison if they don’t pay (except for those who owe the government taxes). In short, the sanctity of contract is already recognized as an intolerable concept under law, because it violates self-ownership.

All anarchy requires is that we accept the idea that other people are not our property. With that alone, we’ll create whatever order and organization is needed in an environment of mutual respect. When we have disputes we can’t resolve, we’ll create tools for resolving them. History tells us that private property is one of those tools, but we shouldn’t raise it to the level of a fetish that overrides our common sense and our humanity.

We Can All Live Together

What makes me most optimistic about the future of the anarchist movement is that reality will always win out over theory. Both the ancap who insists that homesteading creates total and permanent domination of a location and the ancom who insists that all private property is evil bow to the reality that, while they may continue to use the tools of persuasion, ostracism, and boycott, they ultimately will have to live in the world as it is. I see no evidence whatsoever that anarchist societies can successfully adopt either of the extremes (and if I’m wrong, I’ll bow to that reality). The Hasnas piece I referenced earlier suggests that people create property rights when they can solve a problem and make exceptions when those exceptions solve a problem. Common law developed from the common sense of people.

Anarchy is not a system. It isn’t even an -ism, although anarchism is a word we sometimes use. It is an attitude of respect for other people, and a rejection of master-slave relationships (with no exception for government officials). What grows from an atmosphere of mutual respect is unpredictable, differs from place to place, and changes over time. I believe that private property has proven its value, but that it isn’t sustainable without a suspicion of all concentrations of wealth and power, even voluntary. As much as I think anarcho-communists are dead wrong about the need to abolish rent and wages, I think they are dead right about the need to be suspicious of all imbalances of authority and to openly condemn those who take advantage of such imbalances.

Up with Property! Down with Hierarchy!

[End Note: I am not claiming that my interpretations of Proudhon’s slogans are identical to his. Proudhon didn’t even say these things, because he spoke French. But I think he and I would have been friends, at least until we got into a discussion of French vs California wines.]

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