The Search for a Fair Society: Why Rethinking the Concept of Property is Key

September 25. Happy to have you. Grab a coffee and let’s talk about a realistic utopia of a fair society.

So, Rawls rejects any notion that the freedom of exchange is on par with, or should even take priority over, personal freedom and political equality. And I went into his arguments as to why in the last post. There I also previewed two discussions I wanted to add at this point. One was about the definition of personal property that Rawls acknowledged possessing is a basic right. He defines personal property very narrowly as a right to own personal possessions and to have control over one’s living space. I here want to go deeper into what we are talking about when we speak about property.

The whole period of European conquest hinged on the idea of property. Colonial appropriation of indigenous land often began with some blanket assertion that foraging people were living in a State of Nature- which meant that they were seemed to be part of the land but had no legal claims to own it. The entire basis for dispossession, in turn, was premised on the idea that the current inhabitants of those lands weren’t really working. The argument goes back to Locke’s Second Treaties of Government (1690), in which he argues that property rights are necessarily derived from labor. In working the land one mixes one’s labor with it; in this way it becomes, in a sense, an extension of oneself. If you simply made use of the land to satisfy your basic needs with the minimum of effort you’re not an improving landlord and therefor no owner. That’s where the stereotype of the carefree, lazy native, coasting through a life free of material ambitions started. But as indigenous legal scholars have been pointing out for years, the ‘Agricultural Argument’ makes no sense, even on its own terms. There are many ways, other than European style farming, in which to care for and improve the productivity of land. And it’s not the case that you can only recognize private property rights in the sense of Roman Law (the basis of almost all legal systems today) or you don’t recognize them. There are different conceptions of property.

I would even argue that we should abandon the Roman Law conception. What makes it unique is that the responsibility to care and share is reduces to a minimum, or even eliminated entirely. In Roman Law there are three basic rights relating to possession: ius usus (the right to use), ius fructus (the right to enjoy the products of a property, for instance the fruit of a tree), and ius abusus (the right to damage or destroy). If one has only the first two rights this is referred to as usufruct, and is not considered a true possession under the law. You’re renting or leasing from the true owner with whom remains the defining feature of true legal property: the right to not taking care of it, or even destroying it at will.

You can see the results play out strikingly today where it comes to shareholder owned companies and particularly when the shareholders are investment funds. They are paid out dividends which they expect, of course, to constantly rise even when it means the company is eroded. In no way are they required to invest and take care, even when the company is about to collapse, because it is their right according to our understanding of property – a part of the dataset our societies use to align the self-generated models of the world in the members’ minds – to destroy what they own. And not just that, it’s the defining feature of the concept of property that is ubiquitous.

So, contrary to what Locke argued, property in our understanding and actions is not about improving and caring. It is about squeezing it for whatever it’s worth for individual consumption and then abandoning the worthless, dead carcass. It’s about destruction.

And that alone means property, as understood like this, can’t be a basic right. Because as we have seen, a basic right is always a right given to the individual but belonging to the collective that can be reformulated as a responsibility or an obligation each member of society has in regard to any other member without losing their universal correctness. A right to destruction to enrich the individual doesn’t fit the criteria.

It’s also why just shifting the property rights on the tool of production simply to another group doesn’t work, nor turning private property into public property. Property still would be something you don’t care for but that exists to be destroyed through use. It’s all about the conception of property itself. It’s all about the mindset that goes into our own world generation process.

And hence, this also means that private property could become part of the basic rights when we’d redefine the conception of property, when we would rewrite the dataset all members of the group use in their individually generated models of the world to make custodianship the defining feature of property the same way virtually everyone else in the world did in one way or the other before the European conquest. Owning something meant and should mean again that we first and foremost have the obligation to take care of it and leave it better off than how we got it in the first place.

Any thoughts? Tell me. Tell all.

To watch this post as a video, go here.

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