3.4 Do People Hold a Right to Exist? Part 4

We are captives of American ideas about private property. With land we think of property as ownership rather than as exclusive right of use. Land is not the product of our labor. Nonetheless, by sticking a marker in the ground or inheriting a plot, we imagine it is ours to use or destroy as we wish. Similarly, the resources within it are ours to plunder. If someone can get rich quickly enough it makes economic sense to clearcut forests, strip mine minerals, pollute the air, and deplete the soil. It makes economic sense to rob the future.

Before Locke got tangled in using surplus goods to control other people, he defined property as the product of each person’s labor. The right to control land was defined by terra nullius: development and continued usage. With plentiful land available, ownership seemed independent of the right to exist. After the frontier filled and the commons were enclosed, living did depend on having a physical place to “exist”. Granting owners the ability to drive people off “their” land created significant community costs. The crudest cost was that killing the owner made you the new owner: That was Hobbes’ war of all against all: survival of the most brutal.

The social contract is the members’ agreement to protect each other from false claims, theft, or violence. Some costs to enforce the contract – police, courts, and prisons – are obvious and shared by the members. Those are community expenditures. Frequently ignored are the limitations on the community caused by private property ownership: the constraints of private property.

Two farmers feud over a changed creek bed. How does the community benefit enough to justify intervening? Ownership makes long term investments reasonable: protecting twenty years’ labor to develop a profitable orchard. Panning for gold: you keep what you find, and people downstream keep what they find. With a gold mine a prospector finds a vein and starts a shaft. That is Locke’s improvement, and the prospector is “robbed” if someone exploits that investment by digging a new shaft into that vein. The effort to discover the vein gave exclusive rights to the first prospector.

As important to the community, if someone digs a coal mine and four others dig their own shafts, the lack of shared structural engineering increases the chances of the mine collapsing, the death of all the miners, and the possible loss the vein. Similarly a sustainable forestry plan can be destroyed by someone sneaking in to clearcut hillsides. Private ownership makes sustained projects economically possible.

While the community is invested in protecting private property, Libertarians and laissez faire capitalists generally ignore the corresponding obligations to the community. Their belief that they can do whatever they want drags Roman paterfamilias from the weltanschauung depths. Feeling personally sovereign, they have no sense of obligation to the community.

“The European conception of individual freedom was, by contrast, tied ineluctably to notions of private property. Legally, this association traces back above all to the power of the male household head in ancient Rome, who could do whatever he liked with his chattels and possessions, including his children and slaves. In this view, freedom was always defined – at least potentially – as something exercised to the cost of others.” ^{1 2} 

Beginning with the founding of the colonies, wealthy owners shaped American law to accommodate that belief. Into the nineteenth century, while there were still open lands and environmental damage was unrecognized, the costs of exploitation were ignored by the government. However, private property has not universally justified ignoring the suffering of others.

“To [indigenous] Americans like Kandiaronk, there was no contradiction between individual liberty and communism – that’s to say communism in the sense we’ve been using it here, as a certain presumption of sharing, that people who aren’t actual enemies can be expected to respond to one another’s needs. In the American view, freedom of the individual was assumed to be premised on a certain level of ‘base-line communism’, since, after all, people who are starving or lack adequate clothes or shelter in a snowstorm are not really free to do much of anything other than whatever it takes so stay alive.” ³ [Insert added]

Similarly, Islam recognized the duty to the community.

“In practical terms, Islam meant that Muslims had a duty to create a just, equitable society where the poor and vulnerable are treated decently. The early moral message of the Koran is simple: it is wrong to stockpile wealth and to build a private fortune, and good to share the wealth of society fairly by giving a regular portion of one’s wealth to the poor.” ⁴

This base-line support was not an attack on capitalism. France invented laissez faire capitalism in1751. It was not Marx’s communism. Das Kapital was published in 1867. These passages reflect the responsibility to the community recognized in the Charter of the Forest and the Norwegian Code of the Realm. Both protected the public from laws serving the rich. We see this obligation to the community in Locke’s admonition: “When his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind.” ⁵

Four constraints on private property

The community needs four constraints to protect itself from the economic damage private property can cause. Without these safeguards wealthy people can use private property to silently “non-exist” people without turning to William the Conqueror’s force of arms. “Non-existing” is the danger Turner Pass v Johnson empowers. The goal is protection without the constraints being unduly burdensome.

The constraints are: (1) foregone opportunities, (2) externalized costs, (3) the destruction of the future, and (4) the “Tragedy of the Commons.” Just as the community protects private property independent of the cost, private property owners are obligated to protect the community independent of the cost.

Next: the details.

 1 Graeber, David and David Wengrow The Dawn of Everything: A new history of humanity. New York, Farrar, Straus and Giroux p 66.

2  Using Roman law selectively to justify misogyny is itself misogynistic. Marriage cum manu, which included life and death authority, applied to the Patricians (10% of the population). By Imperial Rome only priest used it, then they abandoned it. For the rest of the population women held rights and could own property. So the conservative claim that women are property with no legal identity is drawn from a short period and tiny fragment of the Roman population.

3 Graeber, David and David Wengrow. 2021. The Dawn of Everything: A new history of humanity. New York, Farrar, Straus and Giroux p 66.

 4 Armstrong, Karen. 1993. A History of God. New York Ballantine Books, pp. 142-43.

 5 Locke, John Two Treatises of Government Chapter II, § 6