On Property

It’s long been one of my main guiding ideas that a great deal of intellectual confusion results from the misuse of language. “Property” is a term so poorly defined that it’s worth talking about for a moment.

Example 1: One of the constant themes in Robert Kee’s The Green Flag: A History of Irish Nationalism is how various reform-minded leaders were unable to find a solution to the widespread poverty in Ireland that respected “the rights of property”. This meant mainly the rights of the landed class, whose titles dated back to the Anglo-Norman conquest. On any theory of just land ownership this fails, as this was land taken by conquest and parceled out by royal favor. The serfs who worked the land lived in desperate poverty, as had many generations before them, and this poverty was a cause of social instability for hundreds of years. The difference between the classes was more obvious in the beginning when the landowners were Anglo-Normans and the peasants Irish, but after the conquest the landowners were absorbed into Irish culture. It became a distinction only of class.

By conflating Anglo-Norman titles acquired by force with legitimate property, the Irish and British elites of later centuries were unable to conceive of a solution that respected property titles and allowed for the alleviation of property. The problem was not that private property ownership per se leads to poverty; the problem was that, according to a libertarian theory of property, the wrong people had title to the land. Breaking up the estates into smaller plots, each owned by the peasants who worked them, would have greatly reduced poverty very quickly, but this would have required a better understanding of legitimate property rights and of course been in conflict with the interests of the powerful.

This is just one real-world example. Almost anywhere in the third world today you could find others.

Example 2: The use of the phrase “intellectual property” is another conflation. On one hand is property, physical stuff that can be mixed with labor, and on the other hand there are ideas and extensions of ideas, i.e. sounds, pictures, words. I favor the term “intellectual monopoly” myself, as this makes it more clear that the government is behind what is really an artificial right.

Ideas are non-rival: my “consumption” of an idea does not prevent your simultaneous “consumption” of the same good. By contrast, you and I could not both enjoy the same Cuban sandwich at the same time. Rivalry is one of the reasons why humans devised rules and theories concerning physical property, but this characteristic of physical property is entirely absent from books, music, etc. The now-classic example is that if I borrow a cd of yours and copy it, I return the cd to you good as new, and now you and I can both enjoy the music.

Supporters of intellectual property have several lines of reasoning on their side. One is that it is a reward for creating things, which the creators deserve. I think this fails from the non-rivalry argument, and moreover the concept of “owning an idea” is absurd. Nobody owns language, for instance, but a person or corporation can own certain combinations of words.

Second, this reward is an incentive to further creation without which creative output would slow. This is rarely ever addressed as an empirical question, though it should be. It’s not at all clear that on net intellectual property rights stimulate creativity, and I suspect it’s actually the opposite. A lot of intellectual property is held defensively, where the holder does nothing with it but prevents competitors from using it as well. Stephan Kinsella has a lot more on this point (and on opposition to intellectual property generally).

Third, the cynical reasoning is that current owners of said property have a lot at stake and fight tooth and nail not to lose it. Disney pushes for the extension of copyrights every time Steamboat Willie approaches public domain, and they always get it. People have a tendency to prefer the status quo over change, and so a lot of support for the current IP regime is not really ideological at all.

Example 3: There are differences when considering private property, public property, and common property. Your house is private property. City sidewalks are public property. Common property is not encountered so much anymore, but still includes things like air. Before the current property regime took shape, there were trails, for instance, that were considered common property. The trail was made by many people, and no one person could claim to own it, but at the same time the government was not considered its owner either. If a person were to erect a toll booth in the middle, he’d be laughed out of town by the other users of the trail. If the government were to try the same, it too would be laughed out of town.

Many, possibly most major thoroughfares in the eastern part of the United States started out this way. Though now considered government property, it was not always the case. These paths/trails/roads were products of human action by many actors, and the part X “made” could not be separated from the part Y “made”. This was also a common form of property among American Indians before the conquest. Land could be held in common by a tribe, without anybody in particular necessarily owning a particular part of it, and other tribes knew and mostly respected this.

It may be the case that common property is rarely applicable in most instances in the modern day, but if it is in some non-zero proportion we’d do well to keep it in mind.

A lot of confusion about property rights stems from linguistic abuse. I don’t mean to suggest that we can resolve these issues quickly or simply, just that we should keep these different concepts in mind when we refer to “property”.

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