Category Archives: Law

The Properties of Property and the Reality of Reality

I was talking yesterday to a friend about my concerns regarding assertions of absolute private “property rights” over stuff taken out of the public domain. My friend, an architect by training, is vehemently opposed to anything that remotely resembles a restraint on commerce and wealth accumulation. She describes herself as “nearly objectivist.” She says she was “a typical liberal intellectual” when she first started studying architecture some twenty years ago. Then, in the Autumn of 1991, she read a little book about a brilliant fictional architect, that turned her around. (That book, if you haven’t guessed, was Ayn Rand’s “The Fountainhead”).

Anyway, she was irritated by my suggestion that any such thing as a “public domain” existed. I tried to press her to consider whether perhaps some things could be considered “commons” (the rivers, the airwaves, the last of the old growth forests, some designated public spaces. . .).“There is no such thing as ‘commons,’” she snapped. “Things don’t exist just because you say they do.”It’s not the first time I have heard statements in this vein. And she’s right to assert that “commons” is purely a construct. It’s nothing more than a proposition I am considering. It was made up by humans who think it might be a useful way to organize our relationship to the world.

But what struck me about my friend’s reaction is her utter failure – or refusal – to recognize that there is also no such thing as “private property” EXCEPT THAT WE SAY THERE IS! It’s fine to argue that “private property” is a more useful or desirable construct than “commons” but to pretend that one is a fabrication and the other is something “natural” is absolutely baseless.

Ultimately, what’s more important in property theory (a) that we all – really and substantively – have the ability to prosper as best as our talents and efforts will allow us without hindering someone else’s ability to do the same or (b) that we have a philosophically pure fantasy of limitless acquisition, even as in reality wealth becomes concentrated in fewer and fewer hands?

Keep in mind, that it is modern capitalism, with all its built in public oversight and limits, that has made more people prosperous than any economic system in the history of civilization. In fact, the longest period of sustained economic robustness characterized by wealth proliferation (rather than concentration) was in postwar, post-New Deal United States. By contrast, the objectivist dream was lived out in the 19th Century, when staggering amounts of wealth was concentrated in the hands of a few Robber Barons.

Just to clarify:
*I’m not arguing against private property. For the record, I do think private property and many aspects of capitalism are useful. I just think that, like most human-made systems, they are flawed, and should be evaluated pragmatically, and modified as necessary.

* To the extent that I would entertain the idea of limiting private property rights it would only be with respect to the world’s finite natural resources, air, water, land. . . . frequencies of the electromagnetic spectrum. . . NOT property rights in stuff you create yourself (although, most things you create require some natural resources; but that’s beyond the scope of this post).

* Even though I like the idea of “commons” – I like it only in a limited sense, and even then, I don’t claim to know where the lines should be drawn. I am just interested in exploring the idea.

* I understand that even if we figure out the perfect balance between private property and the public commons, there will always be a question as to who gets to administer “public” resources. Governments theoretically represent the public interest, but I think we all know better.

Before you dismiss the entire line of inquiry as either “basic” or “radical” I urge you to consider this: no one has ever made great – or even particularly interesting – leaps in knowledge without going back to first principles. I’m not saying generally accepted first principles have to be abandoned before you can have any insight. I’m saying there has to be a willingness to question them. No matter how good a theory has been in describing the world, as evidence of its weakness starts to pile up, you have to be willing to revisit it. Even Newtonian physics had to make way when Einstein came along with a theory that explained things better at a more complex level. And Newtonian physics gave a much, much better description of real-world phenomena than does classical free-market economic theories.

One or other economic system is not a “natural” order just because it makes use of some recognizable facts about human behavior (any more than basketball is a natural order just because the athletes’ movements and the trajectory of the ball follow certain laws of physics). It’s a game we made up to serve our own purposes. It’s inane to place the rules of a game we invented beyond our own ability to revise and correct when it no longer serves our purpose as well as it could.

There are significant gaps in our understanding of human nature and how best to order our economic relationships. We routinely treat our theories (private property, money, present-value-discounting, etc.) as gospel truth, and we sometimes treat the world’s refusal to comply with our models as an irrational failing on the part of world, instead of as a failing on the part of our economic theologies! As I said in another recent post, our conceptions of reality should always be recognized as such and never taken for reality itself. Reality will always be complex beyond our full comprehension. Our approach toward it will always be asymptotic.

What we can do, as Jacob Bronowski suggested many years ago, is to get at incrementally better and better approximations of some aspect of reality and with each step, open up vast new frontiers of reality about which we know absolutely nothing.