“Property rights” as pseudo-rights.

Above: a fence in the middle of a field that separates part of a field from another part of a field. They are obviously completely different.

I’ve discussed in the past how property is a nonsense concept. In this entry, I want to concentrate on the notion of “property rights” as the economic foundation of capitalist theory. Property rights are taken as a given, but they really are not. The fact is that property rights as we understand them are designed to further the interests of the rich minority (especially business owners), and there’s no particular reason why they should. Many different ownership systems have existed throughout history, and new ones have been conceived and tried out with success.

[D]efinitions of ownership and theft tend to be thought of as straightforward, even natural. But they are not. They are, rather, the product of human decision. That decision operates to give special protection to just those types of ownership (or putative ownership) that are crucial to economic stratification… Indeed, this was the more or less explicit intent of the framers of the U.S. Constitution. As Noam Chomsky and others have discussed, James Madison viewed the property rights of the “opulent minority” as threatened by the masses, and thus as requiring particularly stringent protection.
The Culture of Conformism, p15

Now, what is the foundation of “property rights”? Where do they come from? Capitalists will give various answers to this question.

The most popular foundation is self-ownership (the bizarre circular belief that the body is a property of itself). I’ve already extensively debunked the concept of self-ownership. I’ve also pointed out that proving “property rights” with self-ownership is a circular argument, since the concept of self-ownership itself is based on the concept of property.

But even if we ignore these fatal problems, how do we pass from self-ownership to property rights? It is argued that if we own our body, then we also own what that body produces. But surely this is grossly inadequate as a justification of “property rights” as they exist today; for one thing, “property rights” are routinely applied and enforced on natural resources, which are not the product of any body. But also, this does not address all “property rights.”

“Property rights” are divided in three category: usus, fructus and abusus. Usus contains the rights regarding usage, such as inhabiting a house or an apartment. Fructus contains the right regarding the products of that property, such as the fruits of a tree or the crops gathered from a piece of land. Abusus contains the right to dispose of a property, such as selling, modifying, destroying, etc.

If we accept the reasoning from self-ownership, then we can make sense of usus and fructus, but not of abusus. After all, most capitalists do not believe that we have a right to sell our own body into slavery, for example. Many also do not recognize a right to suicide, especially conservatives. But if self-ownership excludes abusus rights, then how can abusus rights be derived from self-ownership? There is a logical problem here.

One may sidestep the issue by stating that the kind of ownership in self-ownership differs from the kind of ownership we establish with “property rights.” That’s fine, but then in what meaningful way are “property rights” derived from self-ownership? Logically, the fact that one owns one thing does not imply that one owns, or even can own, anything else. So self-ownership in itself doesn’t logically imply the concept of property.

One may then reply that self-ownership does imply property because we need property in order to survive. We need food, lodging, cleaning, and so on. We must, or so goes the argument, hold things as our property in order to use them in these ways. We have a right to life and, in order to maintain that life, we need “property rights.”

But again, this does not prove all “property rights.” You can hold and use an apple without selling it or destroying it (that is to say, making it unusable). You can live in a house without selling it, modifying it significantly, or destroying it. So again, abusus is not proven here, and it is a necessary part of “property rights.”

Not only are “property rights” not needed to affirm any right to life, but “property rights” are at tension with the right to life. Nowhere is this shown more clearly than in the contradiction between the “property rights” of Big Pharma and the “right to life” of people in the Second and Third World. Let’s look at the root cause of this tension.

Consider that “property rights,” by their very definition, are an absolute limit over the implementation of all other, real rights. I’ve made the point before that the right to life is meaningless without the right to health care and other life necessities, that the right to assemble is meaningless without a place to assemble in, that the right to free expression is meaningless without the tools of that expression, that the right to justice is meaningless without the means to be treated as an equal, and so on. All “negative rights” necessitate “positive rights” to be meaningful at all, including material ownership. And “property rights” make it so that this material ownership is contingent, contingent upon a multitude of factors: who you were raised by, the kind of education and work you were able to get, and so on.

Not only that, but “property rights” also dictate how this material ownership becomes concentrated into a small number of hands. The two biggest influence on this are the lack of limits on the amount of land or property one can acquire (so that one person can buy more than his equal share) and, most importantly, the private ownership of the means of production, by which the owner can extract surplus value from his workers with the help of the extensive structural crippling executed by the State. But this is not new; for centuries, “property rights” have explicitly been used to protect the moneyed minority against the anger of the destitute majority (when they talked about the “rights of minorities,” they were talking about the rich, not black people or natives, who were considered subhuman).

If a small percentage of people have most of the wealth (in the US, the top 1% controls 35% of the wealth and receive 20% of the income, while the bottom 80% controls 15% of the wealth and receives less than 40% of the income; the picture is less dramatic but similar in other Western countries), and we live in a society where wealth determines material ownership, and by extension rights expression, then we should expect such a society to be stratified, and for some to have more rights than others. Furthermore, we should expect many in the bottom strata to have very little to no rights at all.

Note that it does not matter what the power elite claims is the case. We are told that all citizens have equal rights (never mind so-called “immigrants” and children, because they still aren’t considered fully human). Yet in practice we know this is false, to a large extent because of material inequality within countries and around the world. Many people don’t have access to adequate food (six million children die annually of starvation), housing (homeless persons die 22 years younger), or health care (ten million children die annually of treatable diseases), or are forced into substandard food (junk food), substandard housing (“ghettos”) or substandard health care (so-called “alternative” medicine). All children are deprived of education, but some have access to better schooling than others, pushing them towards success or failure. The judiciary system in most Western countries, unlike other judiciaries, is explicitly set up so that rich people and majorities have a clear advantage, both in the structure of the police and courts, as well as in the laws themselves (looking at the kind of crimes that are punished, as well as the kind of crimes that are given much lower punishments or no punishments at all). Workers who have to sign work contracts in order to make a living must agree to have some of their most basic rights violated, in some cases to a point where they are made basically slaves (people from Second and Third World countries are “imported,” then their means of leaving are taken away from them). Religious fanaticism, bigotry, homophobia, racism and sexism can make many people’s lives a living Hell and deprive them of their right to liberty, freedom of thought, and the pursuit of happiness, partially through refusing them access to good-paying jobs, inheritances, the ownership of property, and other ways to access wealth. This is just a very short list, obviously, as the number of ways in which people are deprived of rights or given inferior status are pretty much limitless.

Since people must fight against “property rights” to maintain their livelihood and their dignity (as the Zapatista and other indigenous people have clearly demonstated), there cannot be such a thing as “property rights.” A “right” which supports aggression against other people’s rights is not a right at all.

The legitimacy of “property rights” is only maintained by the pretense that because anyone can, in theory, own property, therefore “property rights” are egalitarian. But this is incredibly flimsy grounds on which to exploit and oppress people. Anyone can, in theory, become a CEO- does that mean corporations are egalitarian? Anyone can, in theory, win a fistfight or a duel- does that mean “punching rights” and “shooting rights” are egalitarian? Anyone can, in theory, write a novel or produce a song- does that mean “IP rights” are egalitarian? Anyone can, in theory, follow “the right god”- does that make religion egalitarian? Anyone can, in theory, be a perfect parent- does that make the child-parent relation egalitarian?

“Property rights” are not only not egalitarian, but they are the primary source of inequality, and therefore of unfreedom. As I’ve argued before, all hierarchies are property.

10 thoughts on ““Property rights” as pseudo-rights.

  1. EMn November 27, 2012 at 11:07

    I’ve run into a situation where I live that bugs me a great deal. Several hundred acres of land managed by the Department of Fish and Game, is actually not managed at all, and in turn the property has been bisected and fragmented into a thousand islands over the years by people building trails, mostly mountain bike specific trails. No one hunts on the property, and there is no ‘game’ besides fish, ducks, and perhaps frogs, lizards, rabbits, rats, and snakes to poach in competition with birds of prey. I want trails, I’m for trails, I use trails, and believe direct action is a way to get them, however the land wasn’t really vacant* and the “action” of building was taken by a select few doing the work of making the trails with little to no input from the community of humans surrounding it. *Perhaps more importantly, the native inhabitants of plants, insects, and animals occupying and using the land for their survival were not consulted before building trails through their living and breeding quarters. The obvious issues is how in the hell do we consult the existing food web to insure our actions do as little damage as possible to a now totally hemmed-in habitat (its surrounded by houses, and is one of the few remaining tracts of “habitat” for miles). My “vote” is in consulting biologists to study the area to ensure if trails are built they are put in places with minimal impact or collateral damage to the existing uses, i.e. the hunting, mating, and gathering habits of the native inhabitants. The sad reality is that it costs lots of money to conduct studies, “everyone” in the community isn’t likely to agree on how much trail we should or shouldn’t have regardless of the biological studies, and lastly we can’t really “ask” the natives. So while I appreciate the the idea of occupancy and use, and don’t appreciate absentee landlordism either, I also don’t appreciate some humans thinking they can do whatever wherever…So I suppose I think animals have rights, as humans do, and in my mind would amend “A “right” which supports aggression against other [animal’s] rights is not a right at all” [whether or not they can communicate and reason with humans]. Yes, this creates lots of problems past, present, and future, but its one more hierarchy/property worth avoiding in my mind.

  2. Sarah November 29, 2012 at 07:50

    How timely for me is this post. I recently tried discussing this with a Fox watching far-righter, which proved to be a total waste of time. “Property rights” are a complete fiction. They are always the result of some initial theft: taking a portion of land, declaring it “private” and then setting up laws and other fictions to safeguard the fiction of “property rights.” In truth, the earth is one big commons. The problem is speciesism—the ridiculous notion that man has the “god-given right” to subdue the earth—this notion being heavily supported by other fictions, such as the Bible. The truth is we are co-inhabitants with all species of this earth and nobody really owns anything. If they did, they could “take it with them,” as the saying goes. If the Mayan calendar “end date” were to prove true, I wouldn’t be the least bit upset. What destruction mankind has wreaked upon the earth…

    • Francois Tremblay November 29, 2012 at 14:18

      You’re right. As Proudhon said, property is theft… :)

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