‘Property’ in its contemporary form

massasoit_quote

In an earlier post history of the idea of property was traced briefly. This one continues the exploration of normative and operational basis for the idea of property. The merit of this pursuit lies in the realm of grappling with several contestations that have emerged in the contemporary society. These contestations are between various classes, ethnic groups, castes (when one looks at India) and races (when one considers US) on the ownership, rights to use and share all conceivable types of resources that can be utilized and benefitted from  in the prevailing economic system. Such a blanket description of resources would then include the Marxist idea of ownership of means of production, ownership and use rights of natural resources and to the variety of ownership that has evolved in the knowledge industry.

An exploration as this, serves the wider purpose of opening up a discussion on how might one try to reconcile these wide ranging conceptions of the idea of property and the variety of normative and positivist ideas that come to bear upon the set of institutions that are then built upon such a conception.

Property rights have held an important status in the political agenda in several democratic countries worldwide. It has also come to be marked as an important feature of a capitalist economy. The modern views on property are as divergent as Monsieur Proudhon’s “all property is theft” to contemporary economist like Hernando DeSoto who sees property rights as (perhaps) the only available tool for raising capital stock for the poor to be able to raise enough financial resources in order to fund their development process. The transformation in the idea of property, thus, has been tremendous.

The operation typologies of property as forms of tangible and intangible thing; private property and common property; property as set of rules about ownership, rights and use etc is not dealt with here. This is because these typologies are based on the same foundational thoughts about conception of property that are discussed here.

The Liberal & Neo-Liberal Period

A discussion on the most recent interpretations i.e. in the liberal and neo-liberal idea of property merits significant attention because of its central position in capitalist economies as well as democracies worldwide.  While this period has come to be known for its exclusionary and restrictive property regime which is enforced through rule of law, it is also a period in which we see the sharpest description and understanding of property and property rights emerging.

In my assessment, this is also a period in which the gap between idea and practice (of the idea of property) is the smallest. This means that in its larger direction, it is the liberal and neo-liberal period where one can find the idea and practice in consonance. However, it might be good to also note that when in the history of idea of property a consonance between idea and practice is achieved, there also emerges one of the most inequitable societies in terms of income and ownership of resources.

For instance, an idea that held tremendous recognition in twentieth century was that property rights are a key for individuals to be able to make use of their labour and transform that property into productive asset which results in a livelihood. The Indian, Russian and Chinese experiments in land redistribution were attempts in line with that kind of idea. However, each of these countries has had different results in bringing about land redistribution. Its premise that ownership of means of production (land in this case) is a necessary condition for individuals to be able to earn a decent livelihood did not yield consistent results.

More recently, economist Hernando DeSoto’s call for enforceable property rights as a necessary instrument in a capitalist economy, in the hands of the poor also showed variable results. At one point, the large multilateral institutions like the World Bank also favoured DeSoto’s call for enforceable property rights as a tool for poverty alleviation. This was proposed to be done by giving property titles to the poor who own whatever little asset that can be titled. With these titles, it is assumed that they will be able to access capital markets and make use of their property as a hedge. In its implementation in Peru, studies suggest that there hasn’t been recognizable change in the poor  people’s economic situation.

Return to Locke

It is useful to see that the liberal period is also marked by a rather elegant theory of entitlements proposed by Robert Nozick. Robert Nozick (1974) argued that a theory of historical entitlement, along Lockean lines, provides both a complete justification of the institution and a set of strict criteria that govern its legitimate distribution. Property rights, according to Nozick, constrain the extent to which we are entitled to act on our intuitions and theories about distributive justice (Stanford Encyclopedia of Philosophy, 2004).

It is a framework which emphasizes individual rights and the derivation of political obligation from consent. Nozick holds that the only legitimate state is the minimal state, whose activities are confined to the protection of individuals and their property and to the enforcement of contracts (Scanlon, 1976).

In these times of neo-liberal hegemony , it is imperative that reconciliation between idea and practice is attempted by the institutions which have come to determine every aspect of social, economic and political life of individuals in the society. While it does seem to appear that the idea and practice of property in the neo-liberal period seems in line, however, this has led to highly contestable and inequitable outcomes. This does not seem to be a constructive basis for the future of civilizational progress. Hence, sounding the opening note again, the pursuit of philosophical basis of the idea of property is necessary, especially since the consequences of the neo-liberal interpretation of property is known and felt by most countries worldwide.

On the idea of ‘property’

From a few earlier projects that our firm has handled (in FRA, land acquisition and coastal regulation) and a couple of academic exercises, I began exploring the idea of property and how it has come to be its contemporary understanding. This meant that I begin with earliest conceptions or references to the word property and further interpretations over time.

The point of this post is to share a brief table which attempts to periodise the property discourse and flags thinkers of the respective period. And then highlight fundamental ideas of the early period.

Periods (of the idea of Property)
Characteristics
Thinkers
I: The Greek Period
Property as virtue
Property as common owned
Aristotle
Plato
II: The Modern Period
 Property as individual right
Property ownership and rules of ownership as an instrument to resolve conflicts in society
Property as creation of sovereign state
Hobbes
Hume (that there is nothing ‘natural’ about private property)
Locke
III: The Marxist Idea
 Ownership of labour
Ownership of means of production
Karl Marx
Proudhon
IV: The Liberal & Neo-Liberal Period
 Property as enforceable right
Economic rationale for property rights
Rule of Law
Entitlement Theory
Erosion of social basis of property
Rawls (asking if property is a philosophical question at all)
Hart
Nozick
DeSoto
Table: Periods in progression of the idea of property

In line with Aristotelian thought, John Locke follows makes a significant contribution to the idea of property with his labour theory of property. At this juncture, there is a departure from what constitutes property to an inquiry into how is property created. In a sense, ownership becomes a secondary thought, while the primary goal becomes articulation of what might be called property. Is it something already present and that a person just lays his claim over it or is property a process of creation and consequently the creator holds the right to claim it as his?The idea of property has undergone this clash of idea and practice just the same. Some of the widely noted ideas include Plato’s argument that common ownership was necessary to promote common pursuit of the common interest, and to avoid the social divisiveness that would occur ‘when some grieve exceedingly and others rejoice at the same happenings’ (Stanford Encyclopedia of Philosophy, 2004).  Whereas, Aristotle argues for private ownership of property justifying that this condition is a necessity for a man to act in the interest of prudence and responsibility. Further, he links the idea of property and its practice to the virtue of man. This is a radical departure from Plato’s articulation and perhaps it can be said that the Greek society’s practice of property ownership and its use as an instrument looked closer to Aristotle’s idea of it.

The resolution of the idea of property in this manner continues into the contemporary times, where this line of enquiry is instrumental in deciding upon rights and ownership issues of newer forms of knowledge products and creation that have emerged. In areas like intellectual property, such debates are instrumental because they offer a method of thought as well as a historical reference point as to how questions of ownership, rights and use evolved over time.

Locke’s original position of natural law to think about property as a creation which comes about when labour is applied to natural resources remains pivotal in understanding property as well as labour. An instance of the chasm between idea and practice that the paper argues for can be seen in case of the Lockean proviso (Waldron, 1979)[2].

This is where we see that the conditionality that one may appropriate a property of a person provided that “… there is enough, and as good, left in common for others” remains sidelined and not applied.  While on one hand there are attempts to understand and conceptualize what property might mean, there emerged thoughts on the applicability of such ideas of property. For instance, Hume argues that property relations only make sense under conditions of scarcity (Stanford Encyclopedia of Philosophy, 2004).

It is useful to contrast Locke’s theorization of property with that of Hobbes and Hume who begin by looking at property from the sovereign state’s perspective. Hobbes and Hume, counter to Locke’s idea of property, argue that there is no natural ‘mine’ or ‘thine’, and that property must be understood as the creation of the sovereign state or at the very least the artificial product of a convention ‘entered into by all the members of the society to bestow stability on the possession of… external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry’ (Stanford Encyclopedia of Philosophy, 2004).

While I pursue the shifts in the later periods, it is quite intriguing that research in this area is not pursued by developing countries and particularly in India where property rights are contested and law suits filed in every single city, town and village in the country.

 

[1] Roberto Unger speaks of Hegel’s idea and influence on his work in social theory in a documentary titled The Origins of Roberto Mangabeira Unger’s Philosophical Thought, 2013.

[2] Waldron asks a sharp question on this proviso which is instructive for the reading on property and Locke’s idea. He writes, in the same paper – “what if there is not enough and as good left in common for others? Does that mean nobody may appropriate anything from the state of nature and call it his private property? In other words, is the italicized clause (of necessary condition) intended as a necessary condition on private appropriation, restricting the appropriation of goods to circumstances in which there is plenty left for everybody else?”.