The Right to Property

by Jason Godesky

The original draft of the Declaration of Independence outlined the “inalienable rights” of all men as including “life, liberty, and property.” Benjamin Franklin convinced Thomas Jefferson to change the wording to “and the pursuit of happiness,” simply because it sounded better, but the Lockesian philosophy Jefferson alluded to has remained the cornerstone of American thought. John Locke was one of the great Enlightenment philosophers, one of the first to espouse the idea of “natural rights.” He was, for his time, incredibly radical in that he was among the first to assert that individuals have rights that derive from something more fundamental than the whim or a monarch ruling by divine right. Locke narrowed down these rights to three basics: life, liberty, and property. During the French revolution, one philosopher defined the differences between liberals and conservatives as one of priority: to conversatives, property rights are more important; to liberals, life and liberty. While few would argue Locke’s point on the first two, the right to property remains problematic, at best.

The radical Left of American political philosophy is deeply influenced by Marx, who rejected the notion of personal property as inherently exploitative. This has led to significant questioning of property rights among the Left, but mainstream liberalism still supports the concept of ownership, as Locke described. Yet, Locke’s argument is rife with unexamined implications that we need to examine more closely.

For Locke, the right to property comes from the application of one’s time, talents and labor to an object; it is that part of nature which an individual transforms into something useful and valuable. Thus, to rob a person of his property is to rob her of the products of her past–just as murder robs her of her future life, and slavery of her present liberty. All well and good, if one accepts a pivotal, unspoken assumption that nature has no value of its own and is free for our taking.

This certainly was Locke’s assumption, and the assumption of all his readers. In their understanding, G-d had bequeathed nature to mankind’s use. Humanity was destined to rule as the earth’s masters, and nature existed only to serve mankind. In this context, Locke’s philosophy makes perfect sense. To date, however, no philosopher has ever successfully divorced Lockesian property rights from monotheism.

Obviously, nature cannot offer consent to being plundered, as there is no “nature” to request it from–nature is, at best, a shorthand for referring to all the complex, interrelated cycles of life going on throughout the universe. First, we must assume that nature has no value in itself, that it is, in a sense, itself “property” to some form of deity. In a sense, then, Locke’s property rights are already relying on circular logic: human property rights are dependent on divine property rights, so that we have a right to property because there is a right to property.

Nor can Locke’s argument even stand in all theistic formulations. Does Thor really have the right to give us free access to nature? What would Odin think of that? If there are many gods, which ones “own” nature, and which ones do not? For Locke’s argument to hold in a polytheistic world, the gods must all grant us free access to that part of nature they “own.” In short, the gods must act as one–essentially mimicking the behavior of one, monotheistic god.

Once we have either a monotheistic deity, as Locke presumed, or at least a pantheon acting as one, then Locke’s argument is at least tenable, if circular. Let us, for a moment, consider the theological implications of this monotheistic god that Locke supposes.

Such a god creates nature, thus making nature his “property” to do with as he pleases–including allow humans free access to it, if he so desires. Does this god know the ultimate outcome of such an arrangement, and of all the suffering and death that will be unleashed on the various plants and animals he has made, essentially selling them into slavery to another of his creations? If he cannot foresee this, he is not only not omniscient, but in fact incredibly short-sighted and rather dim, frankly. If he can foresee this, then his grant of such access means that he approves of such an arrangement–making him an evil tyrant. The implication of Locke’s argument is either that G-d is stupid, or G-d is evil.

I believe neither; instead, I reject Locke’s argument. His justification for the “right to property” is far too problematic. But we cannot simply stop here. We have dismantled the concept of “ownership,” but humans, like any other animal, have practical needs that must be met. At a minimum, we require clean air and water, food, and in some climates, shelter and clothing. Jeff Vail echoes my own thoughts on this matter in A Theory of Power:

When one steps back and examines the notion of “owning� something, the abstraction becomes readily apparent. Ownership represents nothing more than a power-relationship—the ability to control. The tribal institution of “Ownership by use� on the other hand, suggests simply that one can only “own� those things that they put to immediate, direct and personal use to meet basic needs—and not more. A society crosses the memetic Rubicon when it accepts the abstraction that ownership can extend beyond the exclusive needs of one individual for survival. Abstract ownership begins when society accepts a claim of symbolic control of something without the requirement of immediate, direct and personal use. Hierarchy, at any level, requires this excess, abstract ownership—it represents the symbolic capital that forms the foundation of all stratification.

Most of us feel wronged when something is stolen from us, but why? Much of it is acculturation, but what bothers is most is the denial of our own use. As I write this on my laptop, Giuli is using my desktop. This does not bother me in the least, though by Lockesian logic it should. After all, is she not violating my sacred rights as “owner”? I do not mind, because it does not impinge on my own use. If I wanted to use it right now, the situation would change, but so long as another’s actions do not change my ability to use those resources, it doesn’t bother me.

The theft of material goods leaves us feeling wronged because it robs us of our ability to use a given resource. If someone broke in and took my computer, I would feel wronged, because I could no longer use my computer. It is not that my “right to ownership” has been violated that bothers me; it is the violation of my “right to use.”

Such a distinction may seem like splitting hairs at first, but there are important–if subtle–implications. One is that the “right to property” is devalued from the realm of sacred rights, to mere practicality. Robbing someone of their use of some object is no longer “wrong,” but simply “mean.” Enforcement of laws against theft is no longer upholding some moral order; it is merely oiling the gears of a smooth society.

The implications are profound for intellectual property. The RIAA and MPAA have recently recruited the U.S. courts in a campaign against sharing over the internet. They call such sharing “theft,” based on the speculation that every download is a lost sale. This, despite the empirical evidence that file sharing has no effect on sales, to say nothing of common sense, forms the entire basis for their claim, ignoring the very real difference between potential and actual loss. Yet they have managed to prevail, and their unfounded presumptions are now accepted as fact, with an increasing and dismal precedent forming the law on this issue.

Thus, sharing is illegal. But it is by no means immoral. The RIAA and MPAA argue that it is, sometimes supporting such bogus evidence as summarized above, but ultimately relying on their sacred rights of “ownership.” If we accept, instead, a paradigm of “property by use,” this issue is transformed. If I have a song, and someone copies that song, then my ability to listen to that song again is in no way compromised. Neither the RIAA’s nor the MPAA’s members have lost any of the discs they have imprinted data on. No one has lost anything, but someone–the one with the copy–has gained something in that copy. If we believe in “property by ownership,” sharing is wrong, because one’s ownership has been violated. If we believe in “property by use,” though, sharing is good.

We are currently seeing the logic of ownership unravel as computers provide a purely abstract environment for these ideas to play out, forcing us to refine our thinking and be more precise with what, exactly, we believe. It gives the lie to “property by ownership” with increasingly draconian measures such as the DMCA, and forcing its proponents often to rely on completely fabricated evidence.

“Property by use,” on the other hand, was the pragmatic reigning paradigm of human society throughout our evolution, abandoned only recently with the rise of civilization and hierarchy. It is a practical arrangement that promotes the idea of sharing–something we instinctively see as “good,” because of its long history as a basic underpinning of our society and survival. “Property by ownership” ends up being an unfounded mythology that must be maintained in spite of all facts and logic; “property by use” ends up being a practical, reasonable understanding of property rights that fits nicely with our moral intuitions. “Property by ownership” is new, untested, and already falling apart at the seams; “property by use” has been proven by two million years of human evolution.

We own nothing; we have no “right to property,” and nature is not ours to take and do with as we please. We can use the things we need, just like any other animal, within the same bounds as any other animal. But to pretend we have some kind of divinely protected claim to anything is simply delusional.

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  1. Now THIS is a really crazy idea! Ownership defined by use and not by abstraction? Sharing material wealth as a basic component of social interaction? An implied equality of wealth?

    Reinforce the gates. Put more guards on the walls.

    Comment by Chuck — 20 July 2005 @ 6:11 AM

  2. This is excellent. Truly, truly great work.


    Locke does say that Money allows us to own things that we aren’t using, because money is always useable…or something to that effect.

    Hum, hmm.

    Comment by Steve — 21 July 2005 @ 2:15 PM

  3. Money is simply an abstraction of property, no more, no less. If there is no property, then money, too, is meaningless. The concept of money itself relies on Locke’s concept of property.

    Comment by Jason Godesky — 22 July 2005 @ 11:36 AM

  4. I’ve been thinking about this post more, recently, and I have a few questions:

    How do we determine who gets to USE the object originally? What’s the determining factor in original use? First come, first serve? Physical dominance? Because even though property-by-use is a more open-source deal, it still implies some form of property. All animals are territorial, humans are as well. Is this just an “I’m bigger than you and I found it first” kind of deal? How does a species with culture define property differently than a species without culture?

    My thinking is this: as usage expands, property-by-use becomes a constraint to those who do not use. Is this just “the law of limited competition” again? “We each compete (and use) to the best of our ability”? Because when we have 6.5 billion humans, even property-by-use is pretty damn destructive. How do we reconcile this problem?

    Comment by Devin — 28 July 2005 @ 3:08 PM

  5. What isn’t destructive when there’s 6.5 billion? Kant’s categorical imperative completely breaks down here, as there’s pretty much nothing that 6.5 billion can all do sustainably, save perhaps laying down and dying.

    I would say it’s a “law of limited competition” thing, if you want to use those terms. Compete–and use–to the best of your ability. My whole point was to remove the idea of property from the realm of natural rights, to mere pragmatism. The whole point is to say that there is no “should” about property at all.

    Comment by Jason Godesky — 28 July 2005 @ 3:17 PM

  6. The whole point is to say that there is no “should” about property at all.

    Oh. Right. I see.

    So, if I might extrapolate a bit — the abstract of “property” is a function of both hierarchy and population. Hierarchy is the initial promoter of property, and along with population growth, the abstraction is almost necessary for the continuation of civilization’s social structure. Locke, Enlightened thinker that he was, perhaps just sough to extend the rights of property to the commoner and not just the elite.

    I don’t think Locke was necessarily trying to promote the idea of property, or the first to argue this abstract idea of a right to property. Perhaps he merely wanted this concept extended to all, such that it wasn’t concentrated in the hands of the few. That would seem to fit the Enlightenment line of thought better, as it indirectly led to the Age of the Common Man (simplified, when nearly all men owned land or had the ability to own land in America).

    So once again it comes down to population reduction and the removal of hierarchy, in my mind. Everything seems to be so closely linked…

    Comment by Devin — 28 July 2005 @ 4:36 PM

  7. Hey –

    Systems Thinking… gotta love it:-)

    But I just had a strange thought… one of the main reasons that humans will never be able to function as ‘gods’ (as opposed to play acting) is that we simply don’t have the capacity to understand all of the factors that come into play in the natural world. But with systems thinking, it seems like it becomes possible to understand more with less effort — because it is so conceptual…

    nah…. nevermind :-)


    Comment by Janene — 28 July 2005 @ 5:20 PM

  8. Locke definitely wanted to promote the idea of property. Though, to “promote” something you’ve never questioned is perhaps not the right word. He believed in it, just as everyone believed in it. He was very liberal for his time, suggesting that commoners had as much a right to property as kings, and that such rights were not based on divine right from some ruler, but something more basic. His philosophy tried to create an order higher than the whims of kings, that bound rulers to do right and ennobled their subjects. Very revolutionary–for his time, at least.

    That doesn’t mean that he has some unexamined, recieved wisdom that’s full of holes. His argument for property made complete sense in his historical context. His underlying premise was unquestionable in his day. Today–well, let’s just say it’s questionable.

    Comment by Jason Godesky — 1 August 2005 @ 10:53 AM

  9. i am not convinced that the pursuit of happiness was franklin rather than jefferson or that it is only drapery/sophistry/making this shit smell good… while serving as the minister of france 13 years after the declaration, jefferson encouraged lafayette the replacement of droit a la propriete with la recherche du bonheur… an encouragement of the french to merely fall in line, or something more significant as in jefferson’s privileging of happiness/good life over property? the rest of jefferson’s work, through arendt, leo marx, and richard matthews indicates that the socialistically inclined should not dismiss jefferson’s peculiar capitalism so quickly.

    Comment by candy security — 5 March 2006 @ 4:45 PM

  10. This is well worth a note, and some thought!

    Comment by Jason Godesky — 10 July 2006 @ 5:15 PM

  11. Jason- I have a little different spin on the property issue. Much that is on the web seems to be dissecting the words of men and women that are long dead. What are we going to do today in order to encourage a more comprehensive world? My idea is to create a club that essentially acts as a bank that only builds ecologically aware infrastructure. Member deposits are utilized to build the infrastructure and then members draw down their account as they use the property at the lesser of cost or market. (As an aside, this addresses the coming hyper-inflation and/or deflation.) The infrastructure is eventually built and operated by scholars who are interested in learning for the sake of learning. This is something that can take off today with the assistance of key individuals. Please note that this is a system with property rights, but without the individual ownership that has dulled our minds and lined the pockets of the less thoughtful among us.

    Comment by Matt Holbert — 20 August 2007 @ 3:14 PM

  12. What exactly is ownership in property worth when someone else is using it, without your consent or at will?

    Comment by Diakka — 20 April 2008 @ 7:24 AM

  13. That question seems fundamentally at odds with the main point of the article, unless I’ve misunderstood you. Ownership doesn’t exist, so it never has any worth at all. You can’t own. While someone else uses it, while clouds float overhead, night or day, during any season, ownership never amounts to anything more than an illusion, so it never has any worth at all.

    Comment by Jason Godesky — 20 April 2008 @ 8:14 AM

  14. I am from a weird species, so you must excuse me, lol. You can own an accomplishment, as only you have created it, you can own the ground you walk on, or get “owned”, at will, and you can even own other people as chattels.

    Comment by Diakka — 20 April 2008 @ 9:54 AM

  15. All property is theft! A realy cliche but a true one.

    Comment by UK Landfills — 25 March 2009 @ 1:47 PM

  16. The concept that you are missing, foundational to your premise is “who owns you?”.

    If you are a sovereign individual, then you own yourself, and therefore the fruits of your own labors.

    If you own the fruits of your own labors, then your determine how those fruits are distributed.

    If you determine distribution, then anyone who claims your fruits, is in effect claiming a part of you!

    Thus the foundation of “personal property”. It starts and ends with “who owns you?”.

    If you choose to trade some of your labor for the fruits of another (call it a widget), you have realized the benefit of trade by association.

    Thus that object, utilized or not, is an extension of YOU by association, and for someone to “take” that widget, and justify it because you were not using it, is an assault on YOU.

    All property rights are an extension of your sovereign right to yourself, and your own labor.

    Comment by Brad Slusher — 17 April 2009 @ 3:30 PM

  17. If you are a sovereign individual, then you own yourself, and therefore the fruits of your own labors.

    Or not. I don’t think “ownership” is a valid representation of the relationship I have with my self. Be that as it may, however, does the tree “own” itself? Does the rock? The Land? The bird? the deer? If they are not sovereign in themselves then what makes humans special? If they are sovereign then the fruits of your labor are also the fruits of their labor and who “owns” those?

    for someone to “take” that widget, and justify it because you were not using it, is an assault on YOU.

    And for you to take from the world is an assault on the world.

    It is interesting to note that the author is speaking of “ownership” within a tribe/family setting. Does it bother you when your sibling uses your computer? What about a roommate? Some guy down the hall? Why?


    Comment by JimFive — 20 April 2009 @ 10:16 AM

  18. JimFive,

    Are you not self-deterministic? Are you not rational? This combination of attributes is what makes you unlike a “tree” or a “rock”, or any other object - as you well know. Human exceptionalism is what sets us apart from every other thing on this planet, and what you wish to deny.

    Communism (what you are really espousing - your religion) has never worked anywhere, at any time, in any reasonable way. Why? Because Humans are exceptional, and the hive mentality only truly exists for insect colonies.

    Does it bother me when someone else uses my computer? No, not when they have obtained my permission and/or trust. Why? Because I traded my effort to obtain my computer, and would expect anyone using it to do so responsibly. Should it be abused, it will cost me more time/money to restore or replace it.

    Comment by Brad Slusher — 20 April 2009 @ 2:28 PM

  19. We’ve dealt with the inanity of human exceptionalism in great detail elsehwere; see just about everything else on this site. I can’t speak for Jim, but I suspect he also knows, as I do, that those things do not make us unlike trees or rocks. I don’t know that humans have self-determination or rationality. I have no evidence for either claim. Likewise, I have no evidence that rocks and trees don’t have those things.

    You obviously don’t know what the word “Communism” means, and checking your URL, you appear to also join the insufferable crowd of right-wingers today who also don’t know what the word “Socialism” means. Communism requires a large-scale society and a centralized government. I consider myself an anarcho-primitivist; our problems lie with the sheer scale of our society, and the existence of any hierarchy or power structure whatsoever. No, the “hive mentality” does not work for humans as it does for insects (of course, that doesn’t have anything to do with Communism, either), but not because of human exceptionality. It fails to work for humans for all the same reasons that it fails to work for all the other primates, or for wolf packs or elephant herds, for that matter.

    Communism has never worked in reality, but only because no one has ever tried it. The USSR tried Leninism and Stalinism, both quite distinct from true Communism; China tried Maoism, again, a very distinct practice. Likewise, we can’t say much for capitalism, either; again, because no one has ever tried it. Smith made it quite clear in The Wealth of Nations that his argument worked only so long as the assumptions held that neither the workers nor the employers could conspire with one another, but we have had guilds, trade associations, cartels and unions to one degree or another from his day to this. Not that I would expect either scheme to work out, even if we did take a crack at them; beyond Dunbar’s number, the complexity of society overwhelms the human brain. No mass society, regardless of how you care to organize it, can ever work for very long.

    Comment by Jason Godesky — 20 April 2009 @ 3:52 PM

  20. Those attributes that set humans apart from everything else, equally set everything else apart from humans. The deer or the tree could use that exact same argument for its own exceptionality. Humans are no more exceptional than any other life.

    As for rational and self-determined, I’m not sure that I am more rational or self-determined than other life. This New York Times article discusses decision making and voting in deer, swans, and buffalo.

    You seem to have missed my point about property so I will try again.

    On your own, with just your own effort, you can make nothing. You need to have materials to make something. You do not create those materials. Thus, by your own argument, you do not own them.

    So, from your standpoint, the question becomes: how do you get ownership of those items? You answer that question by declaring that the entire ecosystem that created that stick is valueless until you come along and pick up that (e.g.)stick, at which point the stick belongs to you because you made the effort to pick it up.

    However, from my viewpoint, it is clear that the stick belongs either to itself, or to the ecosystem that created it. If I remove a stick from that ecosystem I have forced change upon it. That stick can no longer be used as a home and food for insects. The nutrients bound up in it will no longer seep into the soil to give life to the next generation of plants. Does this mean that I never pick up a stick to use for my purposes? No. But it does mean that I consider the consequences of using that stick. And it also means that I don’t consider that I own the stick. I am using the stick, but eventually it needs to be returned to its rightful owner.


    Comment by JimFive — 22 April 2009 @ 9:18 AM

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