B. Crystals Turned to Mud

Thomas Streeter

12 December 2010

B. Crystals Turned to Mud: The Problem with Property

¶ 1 Leave a comment on paragraph 1 0 A look at the history of Western law shows that it is not just new technologies that render property boundaries confusing. Over the last few centuries, the dream of rights that are “clear and exact” has proven to be elusive across many domains. Property relations themselves, of course, have hardly been in eclipse; as capitalism has expanded over the past few centuries, pressure to extend property relations to more aspects of life has grown unabated. With the important exception of slavery, almost no category of things that has been turned into property has ever been turned back into nonproperty. The problem of property, though, is that, as its scope expanded, the character of property grew ever muddier, ever less “clear and exact.” Property rights in practice, it turns out, have hardly been the crystalline system that Locke suggested and that Nelson hopes for. Gnawing away at the entire idea of property, then, is a sense that making it work as advertised might be impossible.

¶ 2 Leave a comment on paragraph 2 0 It’s not just the distortions caused by side effects like the unequal distribution of wealth or that the judicial and political systems keep finding reasons to blur property boundaries with regulatory efforts like zoning laws and environmental regulation. It is also that crisply defined rights on paper appear much less than crisp when one tries to map them onto the real world of human activities. Even one of the most archetypal forms of property―land―seems to turn up intractable quandaries, quandaries which surfaced in legal cases going back to the nineteenth century. Where, exactly, is the line where enjoyment of one’s own property stops and interference with another’s begins? What if, say, raising pigs muddies the neighbor’s streams or erecting a building casts a shadow on a neighbor’s garden?[9] Over the years, the more that the finest legal minds applied themselves to these questions, the more possible answers there seemed to be, with the result that the case law in aggregate seemed to grow ad hoc and murky over time.

¶ 3 Leave a comment on paragraph 3 0 So, as the twentieth century progressed, the more aspects of life that property relations were applied to the less sense those relations seemed to make. People have been buying and selling things that look and behave ever less like the property that Locke had in mind. In the twentieth century, licenses to drive a taxi in New York City or licenses to broadcast on a particular radio frequency were bought and sold for huge sums, but these things were really not things at all; they were something quite obviously defined and created by the actions of various government agencies.[10] (U.S. law in fact states that a license to broadcast allows the holder “the use of such channels, but not the ownership thereof.”)[11] Ownership of a stock does not grant one anything physical; having five percent of the stock in a company does not grant one the right to walk off with five percent of the factory. Stocks, on close inspection, appear less like property and more like an odd and shifting set of entitlements even as they have become a core form of property ownership in the capitalist system.

¶ 4 Leave a comment on paragraph 4 0 A famous review of historical variations in American legal approaches to property distinguished between crystals and mud, between legal decision making based on firm, bright-line rules and blurrier and flexible standards.[12] While there has been a certain amount of back and forth between crystalline and muddy interpretations of the law, legal theorist William Fisher has pointed out that the dominant trend for at least the twentieth century has been towards mud.[13] The historical record, in sum, would suggest that crisply defined laws on paper may not be capable of producing a crisply defined system of justice in reality; they are crisp on paper only.

¶ 5 Leave a comment on paragraph 5 0 Some philosophers anticipated aspects of this problem nearly from the beginning, noting that the idea of a natural right is a frail one. Jeremy Bentham, for example, when responding to theorists of natural rights, acerbically observed,

¶ 6 Leave a comment on paragraph 6 0 A reason exists for wishing that there were such things as rights. But reasons for wishing there were such things as rights, are not rights. . . . Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense―nonsense upon stilts.[14]

¶ 7 Leave a comment on paragraph 7 0 Bentham’s point was that rights only exist when a government takes action to make them exist; without the hand of some government body determining what rights should exist, what form they should take, and how they should be enforced, there is nothing. Rights cannot be the ultimate protection against government action against individuals simply because they are government action. In the long run, this line of reasoning would suggest, rights are indistinguishable from a government privilege. Property is not a right that protects us from government. Property rights, like other rights, it would seem, are a creation of government.

¶ 8 Leave a comment on paragraph 8 0 Bentham’s response to this problem was to invent utilitarianism. Rights are not natural, but human self-interest is, he surmised, and the pursuit of self-interest can and should be organized to maximize the happiness of the most individuals. This notion in turn laid the foundation for today’s overlapping traditions of neoclassical economics and rational choice theory and has seeped into popular consciousness in myriad ways, such as the contemporary habit of using terms like incentivize. This was the logic at work when, in 1976, the twenty-year-old Bill Gates famously complained to the Homebrew Computer Club about members who freely shared the Basic software that was his company’s first product; doing so, Gates griped, would make it impossible for him or others to keep writing more software.[15] In contrast to Ted Nelson, Gates talked, not of fairness, but of incentives to make software. Software should be protected because free copying would discourage the creation of more software.

¶ 9 Leave a comment on paragraph 9 0 But Bentham’s was just the beginning of a proliferation of various intellectual responses to the desire for a system of property rights that could rest on something other than arbitrary state action. Besides Lockean and utilitarian strains of thought, Kant and Hegel both contributed justifications for property rights based on the idea of a respect for personhood or some form of the transcendental subject, for example, and a broad range of functionalist but nonutilitarian theories of property rights structured on behalf of one or another version of the social good.[16]