THE NATURE OF PROPERTY IN SOCIETY: Toward an Authentic Social Science Alvin Lowi, Jr. November 20, 1998 (Revised 4-15-01) (C) 2001, Alvin Lowi, Jr., - All Rights Reserved PART 2 PROPERTY AND SOCIETY Silber subtitles his article "How a system of extraterrestrial property rights might emerge."1 He asserts "Space-based commercial development will happen sooner than you think." Hopefully, his assertion will prove to be right, but his explanation as to how proprietorship will be established or what will evidence the achievement is unconvincing. "Property" and its corollary "ownership" are common terms for characterizing the actual relations (reciprocal transactions) between two or more people in social contact. Silber overlooks the fact that these features of social life are natural phenomena. Rather, he suggests that property derives from rights that are somehow the creations of government -- merely legislated contrivances or legal fictions. Thus, he concentrates on United Nations’ treaties and other such protocols among nations regarding their sovereignties and constitutional structures. He is concerned primarily with the synthetic barriers to the "ownership" of moon rocks. He overlooks the development of ownership as a phenomenological social institution, a convention arising among men whereby they peaceably settle such issues as "whose is it?" Silber’s focus on political matters would be relevant to developing an understanding of how "property" works in society only if one accepts an aggregation of political bodies as a surrogate for society. But an aggregation of groups does not fit the description of society. Government concerned with rights of groups rather than individuals is the predominant pattern of statecraft in Twentieth-Century America and has been called "interest group liberalism." 12 However, the greater mischief that comes from looking to political government to create property and ownership is that it leaves unnamed and unrecognized the spontaneous and reciprocal human associations and interactions that actually account for evolving human life and order on the planet. If property is a social phenomenon, then it is associated exclusively with social beings and social behavior. Apparently, only human individuals have the capacity and faculty to behave socially. Social behavior is a complex facultative affair attributable to volition, learning and communication of abstractions, information and preferences. Thus it would seem that social beings must be capable of rational thinking, forming preferences and willfully choosing among alternatives; then communicating abstract information and memorializing the same. Political organizations and other collectives are not social beings because they lack an integral, functioning mental faculty for reasoning and choosing. Voting by individual members who have this faculty is something else entirely. Even if the vote is unanimous, it does not synthesize a brain. However, the results of a poll are often misconstrued as the work of such. When human action is taken on this basis, it is a collective that is acting, not the individual members. Volitional social behavior may well be preempted by a synthetic authority attributable to group leadership that capable only of exerting a superior physical force. A collective is merely a herd of animals, which may very well be humans. Even so, the behavior of herds is outside the scope of social science. To take the research on a question of property rights out to some asteroid as Silber suggests seriously compounds the difficulty. Why ride the wake of a robotic spacecraft to resolve subject-matter that remains here on earth where the people are? By removing the venue beyond the tread of biological humanity, Mr. Silber has created a rhetorical exercise out of an astronautical challenge laid down by entrepreneur Jim Benson of SpaceDev, a Colorado company that seeks to commercially exploit a near-earth asteroid. Silber quotes Benson as follows:1
Notice that the social issues Benson raises remain here on earth where the people are, while Silber, a libertarian journalist with a head for news, struggles unsuccessfully in his attempt to extrapolate the social concept of property to a barren extraterrestrial setting. This conundrum can be resolved as follows. Benson is an entrepreneur. He may have his head in space but he knows his feet are firmly planted on the ground along with other people. Benson dispenses with all the rigmarole over national sovereignty and cuts directly to the chase. He goes to his fellows, the real source of all property rights. Benson is a profit seeker among other profit seekers. On the other hand, Silber focuses on political jurisdictions and their ambitions for conquest. Since these institutions can only dispense legal privileges, wealth transfers and protection from competition, Silber must rely on lobbying, logrolling and other forms of "rent-seeking" in attempting to show how extra-terrestrial property rights could develop from these institutions. 13 His approach is a classical example of political libertarianism. That creed upholds the ancient idea that rights are a grant of privilege to individuals (private entities) from some higher authority which, it is supposed, vouchsafes them with its presumed omnipotence.14,15 However, it is precisely from such fanciful appeals to an imaginary higher authority that we get statecraft and real live tyranny, advocacy of Madisonian "limited government" to the contrary notwithstanding. Far from being a useful instrument for establishing property rights, such political contrivances as "constitutions of government" actually frustrate the natural inclinations of people to develop ownership as a peaceful and productive institution. John R. Umbeck gives a fine illustration of the working of the natural process of development of property and ownership practices. 16 He describes the development of sophisticated systems of property rights among the miners of the California gold rush at a time when California had no effective political authority whatsoever. The libertarian faith in limited government is unrealistic insofar as the "property" to be protected under its charter is a legal fiction created by a "higher authority." The higher authority here is no other than the synthetic authority of a collective—a political government or state. In the rumble and jumble of ignorance, urgency and conflict, the question "higher than what?" is ignored. Attention to that question would bring us back to the subject of individual authority, which is to say, authentic proprietary authority. Then, the "higher authority" in question turns out to be "nature." Accordingly, property, in actuality, is a robust natural social phenomenon. It is no more a contrivance of the synthetic authority of the state -- known as man-made law -- than marriage, family, money, music, art or language. Regardless of every good intention, a synthetic "higher authority" can have no other effect on property than to corrupt it. If there is any such thing as rights, as distinguished from privileges or entitlements, they are perfected and exercised by individual, autonomous humans behaving socially toward their neighbors irrespective of the existence of any courts and armed constabularies. If one cares to look, he can see such rights developing spontaneously out of a consensus among persons of equal moral standing. Enforceability by a higher authority of human construction is irrelevant to the formation of such a consensus. To give such a consensus a name like "the public interest" is to risk the creation of an illusion of a higher authority. Then to compound the illusion, contenders for leadership of the fictitious authority contrive and execute polls purporting to form as well as to measure whatever consensus. But a statistical exercise such as a public opinion poll is not an economic expression of a public market signifying the willingness of many to put their money where their mouth is. So an entrepreneur might well conclude he is acting in the "public interest" or "community interest" when he contemplates his successful bank or beauty parlor. Whereas, a politician only presumes his policies are "in the public interest," and then for only so long as he gets away with the masquerade. Acceptability of the notion of a collective "public interest" signifies a significant number of people comprising the population have forfeited their logical faculties. During this interregnum there results in a race of opportunists to subject all human individuals to conquest in the name of the fictitious public interest. This leads to the construction of a human contrivance of some sort to protect the "public interest" come what may. Individual interests other than those of the self-described care-takers of the public interest become lost in the shuffle. A mindless non-entity like "the public" can serve as nothing more than a subterfuge for the regimentation of all individuals by a few presumptuous ones masquerading as spokesmen for the collective. Whatever else may be accomplished, a few succeed in receiving services without rendering any.17 Even if the "higher authority" is alleged to be the "God of Nature," the formulation of so-called natural laws and natural rights remains a human endeavor. Whoever postures himself as God’s spokesman on these matters assumes the position of a higher authority. To the extent he succeeds in a masquerade as a surrogate for God, he rules like Solomon with moral righteousness and a threat of violence against "wrongdoers" wherever they may be found. What we perceive as "property" in the social sense is an institution that derives from the voluntary and customary interactions between human individuals acting out their natural endowments and inclinations, whatever these may be, and on their own recognizance. Such interactions occur spontaneously in the presence of individuals who can communicate with one another. We are inclined to call this sort of congregation a "community." WHY does such community bonding take place? Who knows. HOW it happens is a question scientific study may answer. The scientific study of social reciprocity among humans naturally and appropriately leads to questions of how it happens and under what conditions it might be expected to happen. Only then will it be possible to anticipate reproduction and propagation of this beneficial phenomenon in deliberate behavior. In a community, individuals can be observed putting forth claims to that which they consider PROPER to themselves. This observation is at the etymological root of the of the word "property." In making their claims, these community dwellers may be seen appealing to their neighbors for recognition and respect. Their neighbors being engaged in the same quest are found to be generally receptive and obliging toward such appeals provided no one lodges a dispute or otherwise casts doubt on the propriety of the claim. Presumably, they do so because they, too, are seeking similar recognition and respect. This kind of reciprocity I call "tolerance." The result is a sort of non-aggression pact that reconciles all the prevailing interests -- at least those in the neighborhood. Notice, however, that a non-aggression pact can only obtain peace. Productivity is another matter altogether and one that cannot be taken for granted. COVENANTAL COMMUNITY Another word for a non-aggression pact is a "covenant".18 A covenant, as Heath uses the term, is an explicit or tacit agreement NOT to do something, in contrast with a CONTRACT, which calls for certain specific acts to be performed. A community of human individuals at peace evidences a "covenantal community." Note that members of a covenantal community are not obliged to DO anything to remain in good standing. They can be perfectly "moral" all the while remaining complete vegetables. To qualify as moral, individuals need only refrain from doing anything that by a general consensus of ALL other members is considered a breaking of the peace. In order to achieve a unanimous consensus on the matter of what constitutes a disturbance of the peace, the diverse members settle for quiet possession and little else, i.e. privacy in tenure, possession, expression and all other intimate, consensual, victimless behaviors. This simple covenant regarding property appears to be the common denominator -- the integrating principle -- of all communities at peace regardless of their ethnic makeup or genetic history. But it explains nothing whatsoever about the community’s viability. Curiously, "citizenship" is irrelevant to the existence of communities. What is significant is the creation of titles symbolizing uncontested ownership. While the covenant fails to explain the viability of human beings or their creative social history, it does somehow create a community environment in which markets can arise. Markets evidence a transcendent paradigm known as contractual exchange. Then the basis for the viability of human community life comes to light. |