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The Origins of Property II

The Morals

First, some quick clarifications.  

I deprived the tribe of a moral vocabulary to lubricate the storytelling.  I do not claim the tribe as described are without morality.  Indeed as an advocate of Retributive Ethics I think that pretty much all of morality is already implicit in the principle, "No bullying".

This is a story about the origins of some kinds of property, not morality.  Readers of these posts will recognize it as a dramatic staging of the Retributive Theory of Property. But you do not have to be a Retributivist to think that hurting others is, except in exceptional circumstances, a morally bad thing. And if you agree with that then you should agree that in following The Rule our natives are doing the right thing.

The Rule, as the natives understand it does not ban all violence and I assume we agree that the exceptions it allows are also morally correct. For example, The Rule allows violence to stop bullying and I take it that we agree that it is morally permissible to use violence in defense of ourselves or others.

Another circumstance in which The Rule permits violence is the one in which one person gives another permission to do him harm and I expect all readers to agree that in this circumstance too violence is morally permissible. When one football player tackles another he is doing violence that would get him arrested outside the arena but-- provided the violence is within the agreed to rules-- we don't think his actions on the field are morally wrong. We think it is permissible for the players to knock each other around because they have given each other permission to do so. No one denies this, so I won't bother arguing for it here but will note that this aspect of our moral authority over ourselves-- our power to permit violence against ourselves-- has been mostly overlooked by philosophers, though it is central to Retributive Ethics.

If you agree to this much then it seems to me that you must agree that the permissions the tribe grants Wilt at the end of the story are moral permissions and that his rights vis a vis the plot of land are moral rights.

We think The Rule is morally correct. But notice I neither assert nor deny that the natives themselves regard The Rule as a moral rule—whatever that might mean. I suppose that some might protest that this is a defect in the story. To follow a rule like The Rule mustn't the natives already be convinced that is morally correct by some higher moral standard? Mustn't they think, say, that it maximizes general utility?

No. That is a confusion about rules and rule following.  For my purposes we can regard The Rule simply as a convention in David Lewis's sense. That is, it is a perhaps arbitrary, but self-perpetuating, solution to an ongoing co-ordination problem. That problem is how to maximize chances of survival confronted with a hostile environment and surrounded by potentially hostile neighbors. To make sense of the natives' preference for The Rule neither we nor the natives need to think that it is the only equilibrium solution there could, or ought, to be.

I denied my natives words for "right" or "wrong", but that does not keep them from behaving morally. I also denied them words for "promise" or "contract" or "obligation". Do the natives make promises?

Well note that Wilt does not promise, even tacitly, to fight the next Bear that comes around. Neither does the community promise to reward future bear fighters as they have Wilt. And interestingly neither Bob nor anyone else promises not to forcefully resist if at some point in the future Wilt has to evict them from his land.

Still, some readers Wilt protest, Bob's giving permission to the others to use force against him if he trespasses on Wilt's land functions, in the story, very much like a promise not to go on Wilt's land.

I happily concede the point. It confirms the Retributive Theory of Promising: the view that to make a promise just is to give someone a conditional permission to do you harm.

Now to the morals.

MORAL 1: Hobbes was wrong.  

Hobbes and many after him held that in an absence of government and laws -- in a "state of nature"-- there could be no property.  At the beginning of our story our natives are in that state.  They lack a government and the enforcement of their only rule is voluntary. In Hobbes' terms their situation is like that of sovereign nations interbellum:  a time of truce in a war of all against all.  And yet, pace Hobbes et. al., our natives have property and even an economy.

Hobbes is only a first in a long tradition of confusing the existence of property rights with their successful enforcement.  It is not a confusion that is often made about other rights.  Thus we think that even absent government and laws, people have a right to self-defense.   We think everyone has that right even if he or she is too weak to defend him or herself; even when no one will come to their defense.  They have that right even if they cannot enforce it.

Property rights, like the right to self-defense, are moral permissions ("privileges" in Hohfeld's terms).  To have the right to self- defense is to have the moral permission to forcefully interfere with attackers.   To own some land is to have the moral permission to forcefully interfere with trespassers. At bottom, having that moral permission is all there is to ownership: It is not morally permissible to kick people off your land because it is your property; it is your property because it is morally permissible for you to kick people off it.

But "may" does not imply "can".  You can have property rights even though you cannot enforce them and even if social arrangements make no provision for defending you against their violation. In our story a native's rights against bullying are enforced by the spontaneous vigilantism of the other tribesmen.  That does not give them rights they would not otherwise have but it helps us see more clearly what those rights amount to.

We can see that our tribesmen have property rights even at the very beginning of our story because they have the right to self-defense. The right of self-defense is an ownership right: it is a moral permission to forcefully interfere with others if they should try to trespass against our bodies.  And because our bodies are objects in the world, our ownership in them emanates to other things:  however much I might admire the shirt on your back or the apple in your hand, if I cannot lay hold of them without doing violence to you, then your right to self-defense makes it permissible for you to forcefully prevent me from acquiring them.  

Thus in the state of nature you own what you physically possess. This may not seem much, but our fable illustrates how it might be enough, in principle, to sustain an economic order: a market red in tooth and claw.

MORAL 2: Locke was wrong

In our story Wilt acquires a new kind of property. He comes to own something not in his immediate possession. Things that once belonged to no one-- a vacant plot of land and its contents-- have become his.

How this might come about is a long standing philosophical problem with few plausible answers.

There is the "first use" or "first occupancy" theory : the idea that the first person to discover a thing therefore owns it. This theory is often credited to the wonderfully named Samuel von Pufendorf. Alas, Pufendorf seems to have had no arguments for this arbitrary principle . Why not second use, or third? (In any case, I've always found it hard to believe that Pufendorf really was the very first person to discover this idea. Perhaps he was just the first to shout "Dibs!".)

John Locke's theory was that we begin by owning our own bodies and then by "mixing our labor" with other things -- clearing land, planting crops and so forth -- we somehow mix our self-ownership into these other things. This isn't much of a theory; it isn't even a good metaphor for a theory. As Robert Nozick observed:

...why isn't mixing what I own with what I don't own a way of losing what I own rather than a way of gaining what I don't? If I own a can of tomato juice and spill it in the sea so its molecules... mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?

But then Nozick himself has no better story to tell. He concedes that any theory of property needs to explain "first acquisition" somehow, and suggests, very tentatively, that it might have something to do with laboring to increase the value of things. For some reason Nozick declined to call this "the surplus value" theory of ownership though the name would have been apt.

Yet Wilt -- our Wilt-- was not the first to discover his land. Nor did he mix his labor with it. Neither upon it did he spin nor did he toil. We could have told our story so that he had never set foot on it before acquiring it. I conclude therefore that discovering first, mixing your labor with or improving things is no more essential to their first acquisition than is killing bears.

It is true that Wilt could be said to have earned his land by doing something the community valued and that all those who gathered round the campfire hoped that by rewarding him they would be increasing the general welfare. But this speaks to their motives for granting him the land, not to the substance of the grant itself. It might turn out that their hopes are misplaced-- that Wilt grows so fat and placid on his little plot of land that he becomes useless during the next ursine attack. Even so, whether or not his possession promotes the general happiness, the land will remain his so long as it is morally permissible for him to kick the other tribesmen off it and it will be permissible for him to do so because they gave him that permission; even if they come to regret it.

The Origins of Property: A Parable with Morals

The Parable

Once upon a time there was a primitive tribe that hunted and gathered in a verdant forest in a temperate clime.  

I call them a "tribe" but that name may mislead if it suggests some rigorous form of  social organization.  In fact, the group was about as un-organized as it is possible for people to be.  There were among them no elders, chiefs, shamans or any other kind of leader with authority over his fellows. With one exception-- which we will soon discuss -- there were no laws, rules or taboos that were obeyed or enforced among them and no judges or police to enforce them.

This lack of norms was reflected in their language which (luckily for our narrative purposes) was much like modern English but which lacked any moral or legal vocabulary.  The natives never spoke of 'right' or 'wrong', 'legal' or 'law'.  They had no words for 'promise', or 'contract' and none for 'property' or 'ownership'.

Even so, as I just averred, there was one rule that the natives generally acknowledged and mostly conformed to. They called it "The Rule".

The Rule: No Bullying!

By 'bullying' the natives seem to have meant, roughly, hurting other people or using force or the threat of force to compel others to do what they would otherwise not do. But not every use of force or infliction of harm was regarded as bullying. 

It was, for example, not considered bullying to use force or its threat to defend oneself or someone else against a bully. The Rule permitted self-defense and "other defense" and this had important consequences for all of tribal life.

To understand these upshots it is necessary to understand that the tribe's aversion to bullying did not mean that they were averse to violence or the use of force. These were hard men and women in a hard time. They hunted for food with primitive tools and competed for game with lions and bears. Many among them prided themselves on their martial skills and relished a good brawl.  They would set to with enthusiasm given any excuse and, under The Rule, defending against bullying was an excuse.  

That meant that any native attempting to push some weaker tribesman around might find the tables quickly turned as many defenders rushed to intervene and -- happily unrestrained by the The Rule— teach the would-be bully a brutal lesson.

Yet The Rule had application even here.  The natives recognized that things could go too far: that using too much force-- more force than was required to stop the bully-- could itself turn into bullying.  If they judged that self-defense was turning into a retaliatory beating, other natives would turn their efforts to protecting the would be bully.  Bullying, even of bullies, was not tolerated.  

Such bullies as there were amongst the tribe were, of course, aware of these dangers and so would be careful to pick victims too weak to fight back and catch them when there were alone.  But when the other members of the tribe heard about such an incident they would track the bully down and force him to make it up to the victim.  So, for example, if the bully had snatched an apple from the victims hand he might be forced find him another. If the victim were injured, the bully might be forced to hunt and gather for him until the victim recovered.  This use of force-- to compel compensation-- was not regarded as bullying and was also exempt from the The Rule.

Sometimes too, if the tribesmen thought the bully was likely to repeat his infraction they might administer a modest beating and threaten him with more, "to teach him a lesson", as they would say.  And these acts and threats of violence were not regarded as bullying either so long as they were proportionate to their avowed purpose-- to prevent further bullying.   

In this way The Rule was self-enforcing: Those who did not obey it were likely to suffer at the hands of those who did. This enforcement depended entirely on the tribesmen's general willingness to intervene on behalf of the bullied and such intervention was purely voluntary.  The rule was not understood to require anyone to defend anyone else --or even to defend oneself-- against bullying. In any case, there was no mechanism for enforcing such a requirement. To attempt to force anyone to fight bullies, everyone acknowledged, would itself be bullying.

The willingness of the tribesmen to come to the defense of their fellows must therefore be counted a kind of altruism; albeit a self-consciously reciprocal altruism. "If I defend my neighbor today, he may defend me tomorrow",  the natives often said.  And just because enforcing The Rule was voluntary, anyone with a reputation as a coward might find himself with few defenders when a bully appeared.  Then too, it was common practice for rescued victims to show gratitude to their defenders by doing them services and favors.  These acts of gratitude were not thought of as payments due or as morally required -- as I said, the natives did not speak the language of contract, debt or  moral obligation-- but as simply prudent since, as they would say, "you never know when the next bully will come round".

Now I said that the native's language possessed no words for "property" or "ownership".  Of course one can have a thing and not have a word for it but the natives certainly did not enjoy the kind of enduring ownership of things that we associate with these words.   

In the morning most of men and women of the tribe would go off to forage for food.  When they returned to the general campsite in the evenings each would look anew for a place to set a fire and bed down, and every night this was a matter of first-come, first-served.  It did not matter if a tribesmen had been the first to discover a particular cozy spot or if that native had (as philosophers say) "mixed his labor" with that campsite by clearing trees or erecting a lean-to.  It didn't matter if that particular native had slept in that particular spot, whenever he could, for season after season.  On any evening he might return and find someone else was already sleeping there and there would be nothing to be done about it.  He could not forcibly evict the interloper because that would be regarded as bullying and the other Tribesman would use it as an excuse to "teach him a lesson".

As it was with land so it was with things.   The natives knew how to knap stone tools and scrape hides for clothing.   But if any other native found a tool or fur sitting unattended she could simply walk off with it and there was nothing the artisan could do to reclaim the fruits of his labor.  He could not use force or even its threat, because that would be regarded as bullying.  

It was the same with the food.  A hardworking native might scramble all day to collect a few nuts and berries but the moment he set them down others who had done nothing all day but lounge by the fire might scoop them up and eat them all.   And there would be nothing the hard working native could do about it. No bullying!  

Observing all this, anthropologists might say that this was one of those communities which lacked even the ""concept of Property".  But then anthropologists say many foolish things.   It was true that any item any tribesman left unattended could be taken by any other no matter what its history or provenance.  But it was also true that once a native had taken something into his possession The Rule protected his possession of it against any who would try to take it away.  

If the fiercest fighter in the village happened to leave his favorite spear unattended for a moment, the weakest tribesman might pick it up and use it as his own.  If the fighter tried to snatch it back his behavior would be regarded as bullying and would invite a beating from his fellows. A beating which would likely end with his being forced to return the spear and perhaps other compensation.   

Likewise, while who-slept-where was a matter of first-come, first-served, once a native had encamped on a particular spot no one would dare to try to forcefully displace her. Thanks to the Rule she was safe, "safe as houses" as they say.  

So a native might be said to own the clothes on his back, the ax in her belt or the apple in his hand for as long as he or she held on to them.  Any native was the sole proprietor of any land where she lay down at night-- until she got up the next morning. Anything that you could only be deprived of by being somehow pushed around was your property by dint of the Rule's protections against being pushed around.   

What each native owned was limited to what he physically possessed at any given time and while this kind of ownership is obviously limited it was sufficient to sustain a robust economy with distinct economic roles.   Thus: Every morning while some natives would go off to hunt and gather, others would stay behind to make tools, scrape hides or just squat on the choicest camping spots. Come evening, trading would ensue.  Fruit, nuts, and game would be traded for tools and clothes and choice campsites close to the fire.

These transactions were tricky because the natives had no institutions of promising or contracting. As I said the native language did not even include words for "promise" or "debt".  If you handed over your piece of fruit in the expectation that the other guy would give you a nut, and he didn't, there was nothing that you could do and no one to complain to.  Any attempt to forcefully get your fruit back would be treated as bullying and others might forcefully restrain you.  No blame or penalty was associated with frustrating others expectations in this way.  

This made trading complicated, but not impossible. Typical exchanges among the natives would involve either perfectly synchronized handings-over or complicated dances in which the parties would set down their goods at some distance away then slowly circle round till they had traded places and possessions.  

If you wanted a squatter to yield you a choice camp site, you might place a tempting tidbit just out of his reach, so he would have to vacate his ground to retrieve it.  If you misjudged your timing and he or someone else got to the site before you, you were out of luck. No bullying!

Cumbersome though it was, the system worked. The artisans and squatters were fed and hunters and gatherers were equipped, clothed and usually slept where they might wish. The property thus traded was property because of The Rule. And thanks to The Rule the trades were always voluntary and usually accomplished to the satisfaction of all parties involved. No one was bullied into giving up their property.

But again I fear I am making the natives sound too pacific, an impression I may correct by pointing out one more wrinkle in the natives understanding of The Rule : It was not counted as bullying to use violence against someone who had given you permission to do so.

Why, you might ask, would anyone give their permission to be hurt? Well one reason (we will soon find others) was simply recreation: It provided a way for the stronger tribesmen to exercise their violent impulses without bullying.

Typically, these permissions to mutual harm would be exchanged reciprocally in an ancient ceremony.  It would begin when one tribesman saw another he thought a worthy opponent.  He would catch his eye and ask the ritual question,  "Who are you looking at?" By which was meant, "Do I have permission to do you as much violence as I possibly can?" If the other tribesman were disinclined to fight he would say, "Can't we all just get along?", and slink away.  But if he was up for it he would give the customary reply, "You want a piece of me"? By which was meant "I herewith grant you said permission provided you will grant me leave to beat you senseless".  To which the expected retort was "Bring it! " ; meaning "I do herewith grant you said permission!"  

At this point the witnesses-- and there was always an audience -- would signal to the combatants that they recognized that reciprocal permissions had been exchanged by loudly chanting "Get it on! Get it on!", by which they conveyed to one and all that, until the permissions were rescinded, they would not regard anything one combatant might do to the other as bullying.  

Thus reassured that their fight would not be interrupted, battle would commence. At any point in what followed either party could rescind his permission by saying the ritual word "Uncle".  To attack a man after he had said "Uncle!" was regarded as bullying, and hence subject to violent interference from members of the audience.  This, of course, is one of the reasons the fighters would take care to make sure there was an audience and, if possible, one in which both fighters had allies.  Another reason was to protect a fighter from a poor loser's later denying that he had given permission and denouncing the winner as a bully.

In this quaint fashion the tribe survived for many years. Though, as economists might have predicted, it did not prosper or progress as much as it might have.  No native craftsman would labor very long over a spear that anyone might walk off with as soon as he or she set it down.  And no one bothered to hunt or gather for more food than they could immediately eat or barter away.  So the natives' tools remained primitive and their stores of food so small that a hard winter or drought could lead to general famine.  Life was short, but, thanks to The Rule, not as nasty or as brutish as it might have been.

Then one day disaster struck...