учебный год 2023 / (Critical Approaches to Law) Margaret Davies-Property_ Meanings, Histories, Theories-Routledge-Cavendish (2007)

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people have escaped formal identification as property only to find that they are still culturally commodified. Things move in and out of the category of objects of property. Old forms and ideas reappear in new contexts. On the other hand, to reduce property histories to a repetitive cycle would be to underestimate the political and intellectual conflicts which property attracts. It would also neglect the new resources (such as the internet and culture) and new social concerns (such as environmentalism and globalisation) which change the terms upon which these contests are played out. The future is influenced but not determined by the past. In Chapter 5 I will consider how some of these contemporary questions might hold promise for a di erent understanding of property.

Notes

1By the term ‘racial capital’, I mean the racial equivalent of what Skeggs refers to as ‘cultural capital’, that is, a privilege which has an exchange

value or, as Cheryl Harris termed it, ‘whiteness as property’ (Skeggs 2004; Harris 1993). See also Chapter 2, above.

2And even now, marital rape is sometimes regarded as a lesser crime than other forms of rape. See generally R v R [1992] 1 AC 599; R v L (1991) 174 CLR 379; Hasday 2000; Warner 2000.

3This was despite infamous pronouncements such as that in Mawgridge (1707) 84 ER 1107 at 1115: ‘jealousy is the rage of a man and adultery is the highest invasion of property’.

4The quotation is from ‘Directions for Obedience Government in Dangerous or Doubtful Times’ originally published in 1652 and republished

in Filmer 1949.

5Unproved allegations also recently suggested that nominations for peerages might have been exchanged for substantial loans to a political party.

6Leader, ‘Slow Exit’, Guardian, Saturday 5 August 2006, viewed 7 August 2006 at www.guardian.co.uk/commentisfree/story/0,,1837774,00.html.

7In March 2007 the House of Commons voted in favour of a fully elected House of Lords, while the House of Lords voted in favour of a fully appointed House. It is yet to be seen how the newest round of reforms will play out.

8The children of a daughter (and their possessions) would normally be in the power of her husband or his father.

9Or by the operation of law where, as the Twelve Tables said, if the father sold his son three times, the son would be free.

10Australia, for instance, has a Foreign Acquisitions and Takeovers Act 1975, and the Australian state of Queensland has a Foreign Ownership of Land Register Act 1988, under which all land owned by foreigners must be registered as such. See also the Investment Canada Act 1985.

11Cahir (2004: 620) distinguishes three types of property – ‘private, public,

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and common’, or ownership by a ‘private legal entity’, ownership by the state, and the situation which arises where there is an absence of rights of exclusion, i.e. both the negation of property and a positive public domain. This division, while perfectly reasonable, highlights the di culty of categorising types of property. Some writers insist upon reserving the term ‘commons’ to a resource accessible by a limited group of people (which I think Cahir would define under ‘private’, since a right of exclusion exists, cf. Rose 2003: 106), while the term ‘public domain’, as used for instance by Lange (1981), is distinct from Cahir’s public (i.e. government) property, referring instead to what Cahir calls the ‘information commons’. Because I am highlighting the various constructions of the owner, I have adopted a di erent taxonomy: basically that proposed by McKean (1992: 251–2). I refer to state or government property (some of which is private and some of which overlaps with the public domain), limited commons, and the public domain.

12I recall the bumper sticker (source unknown) which said ‘Privatisation: why buy what you already own?’

13An interesting aside is that while enclosure meant the decline of such rights of common, it also assisted the rise of easements, since rights of way – previously unnecessary in the open countryside – were needed to ensure the ability of people to pass through privately owned fields (Simpson 1986: 261–2).

14A very interesting and extensive literature, which I do not have space to consider here, illustrates that the ‘author’ is essentially a modern invention. For two early pieces see Woodmansee 1984; Foucault 1979, and for more recent discussions see Aoki 1996 and Sherman and Bentley 1999: 35–7, who also consider in detail the early justifications for recognising property in literature.

15There are other justifications for recognising intellectual property – for instance, that we ought to own the products of our mental labour (just as we ought to own the products of our physical labour); or that we simply own them by occupation: Sherman and Bently 1999: 20–4.

16As Sinclair points out in his note to this section (Aristotle, Penguin edition, 1962) Aristotle has not provided anything like a convincing argument that some slavery is natural, he has merely asserted that people are needed to do menial and physical tasks.

17O ce of the High Commissioner for Human Rights, Fact Sheet No. 14 (1991) ‘Contemporary Forms of Slavery’ available at http://www.unhchr. ch/html/menu6/2/fs14.htm, last viewed 14 April 2007.

18E.g. The Universal Declaration of Human Rights 1948 Article 4: ‘Noone shall be held in slavery or servitude: slavery and the slave trade shall be prohibited in all their forms.’

19Again, there is a very extensive and fascinating literature on this topic.

20See Press Release, University of Newcastle, ‘Egg-sharing’ go ahead for stem-cell researchers’ 27 July 2006 http://www.ncl.ac.uk/press.o ce/ press.release/content.phtml?ref=1154008083, viewed 14 April 2007.

21See, for instance, Moore v Regents of the University of California (1990) 793 P 2d 479.

22The wrong of ‘passing o ’ in this context is not appropriation of the

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property in an image, but rather the false representation that a person endorses a product.

23 For the sake of simplicity I have omitted discussion of Gray’s legal excludability, which is inherently more complicated conceptually.

24 Rob Amery and Kaurna Language and Language Ecology Class, University of Adelaide, quoted in Janke 1998: 20.

Chapter 4

Theories

INTRODUCTION

In Chapter 2 I outlined aspects of the cultural meanings of property, illustrating how it acts as a metaphor for ideas of the self, knowledge and law. In Chapter 3 some of the historical transitions in the legal idea of property were considered: the transitions I described concerned the changing shape of property and, in particular, its shifting relationship to various forms of power, the changing identities of property owners and some important shifts in what can be regarded as an object of property. These historical transitions were motivated and accompanied by a combination of economic, cultural, ideological and political factors, including rising individualism, gender and racial equality, the desire for economic security, corporate power, and secularism.

In the scheme I have adopted in this book, philosophical theories constitute a third side of the ‘cultural matrix’ of property. The philosophy of property is normally taken to involve two key issues: first, the nature of property – ‘what is property?’; and second, the moral or other justifications for property. In this chapter I focus mainly upon the second of these questions; although obviously the first question is often embedded in it (it is di cult to justify something without first knowing what is being justified). Given the foundational nature of defining property (and the ultimate impossibility of doing so), I have considered some (admittedly minimal) aspects of this question in Chapter 1.

This chapter will look at two well-known theories of private property, beginning with what has become the most influential and controversial approach to property in those parts of the world influenced by English law and colonialism, that of John Locke and his

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Second Treatise of Government. Following this consideration of Locke and his contested place in the development of propertythought, I will turn to the German philosopher G.W.F. Hegel, whose Philosophy of Right provides a view of property which shares some similarities to Locke’s approach, but is also distinct in some fundamental points. Hegel’s work has been adapted in some interesting ways by several contemporary critical legal theorists.

LOCKE, LIBERTY, AND THE COLONIES

In the last decades of the twentieth century there has been a revival of interest in Locke as a political writer, rather than simply as an abstract philosopher (Arneil 1994). In this respect, two features of Locke’s own life have come to the fore: first, his association with a radical (early liberal) politics which aimed to broaden the base of political participation (Schochet 1989); second, his theoretical and personal interest in justifying colonial expansion. Both of these issues raise very complicated questions about Locke’s place in the context of seventeenth-century (and subsequent) political thought (Tully 1993). Looking at matters solely from a twenty-first-century perspective, Locke’s political liberalism regarding domestic a airs sits uncomfortably with his strong defence of highly exploitative colonial practices. In the following discussion I am not going to attempt to understand Locke within his own political context: this is a matter best left to the historians of political thought. Rather I will confine my discussion to some critical questions about the continuing resonance of Locke’s views on property, highlighting in particular some of the tensions and contradictions which are evident, especially as it relates to colonial expansion and current imperialism.

It might be overstating matters to claim that Locke’s theory remains directly influential on cultural and legal understandings of property, in the way that it directly influenced colonial policy in the eighteenth and nineteenth centuries. However, it is no overstatement to say that it represents a political lexicon and ideology which is a key element of Western liberalism. As James Tully puts it:

Three hundred years after its publication the Two Treatises continues to present one of the major political philosophies of the modern world. By this I mean it provides a set of concepts we standardly use to represent and reflect on contemporary politics.

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This arrangement of concepts is not the only form of reflection on modern politics, not our ‘horizon’ so to speak, but it is a familiar and customary one.

(Tully 1993: 137)

In relation to property, for instance, Locke’s work gives philosophical credibility to several concepts: self-ownership; property as the reward for individual labour; the economic benefits of enclosing the commons; and a moral argument that land must be cultivated or put to industrial use to benefit humankind. These ideas have entered the narrative of liberalism and are regularly deployed by politicians and political commentators. They are certainly not the only concepts regarding property in circulation, and often enter into competition with ideas derived from environmental, socialist, or First Nations perspectives. Nonetheless, the Lockean concepts remain very powerful.

Locke: The Second Treatise

Locke’s Second Treatise of Government, and in particular Chapter V, ‘Of Property’, has been the subject of very extensive scholarly debates. Despite much criticism of the theory put forward by Locke, and despite the limitations which he placed upon acquisition of property, the theory seems to have an intrinsic appeal. This appeal is perhaps derived from the fact that the theory is based on rewarding labour, which seems intuitively just. The theory posits property not as something which is derived from a person’s God-given or natural status, but rather as something which can be acquired by anyone, and even accumulated. These elements of Locke’s thought must have seemed very attractive to the emerging capitalist, new landowning, and colonialist classes of the late seventeenth century. At the same time it o ered nothing more than grand rhetoric for those without the capacity to grasp new opportunities for accumulation, and even less for those dispossessed by colonial expansion. As Lebovics put it:

Commentators have noted the curious ambiguity of Locke’s political writings which permitted him to justify the actions of rapacious and rebellious men of wealth of his and later ages and at the same time hold forth a promise of unprecedented political participation for the many.

(Lebovics 1986: 579)

88 Property: Meanings, Histories, Theories

As was so often the case in the development of liberal thought, the extension of political power, property and privilege was incremental: for Locke, it did not apply to women (Pateman 1988; Arneil 2001), it is doubtful whether it applied to the working classes (Schochet 1989), and it openly accepted the exploitation of slaves and those still living in what he perceived as a ‘state of nature’. The liberalism of equality for rational individuals and the illiberalism of discriminating against those who are presumed not to fit this norm, are two sides of the one coin (Parekh 1995).

In Chapter 3 I discussed the enclosure movement which took place in Britain from the middle ages through to the nineteenth century, and outlined current concerns about a second enclosure movement taking place in the sphere of intellectual property. Locke’s approach to property is first and foremost a theory of and justification for enclosure, not only in Britain, not only in the so-called ‘new’ world, but everywhere, anywhere and for all time. Or, as one commentator has put it, Locke’s was a ‘notion of appropriation’ rather than a ‘theory of property’ (Thomas 2003: 30).

Like most Enlightenment philosophers, Locke’s thought was intended to be universal, but it was nonetheless a Eurocentric universalism which assumed that ownership involved fencing and using an item (in this case land), that political organisation took a particular institutionalised form, and that accumulation was not only a natural desire but a God-given duty (Parekh 1995). Like the practical and legal acts of enclosure discussed in Chapter 4, Locke’s theoretical enclosures start with the commons and the presumption of a state of nature: in the Christian world inhabited by Locke the commons were a gift from God, available to all in the state of nature, but ultimately to be used for the benefit and prosperity of ‘mankind’. Evidently, Locke’s ‘commons’ were somewhat akin to an unlimited realm where everything was res or terra nullius. It was not a protected public domain, nor a limited commons, since objects could be removed from the commons without the consent or even the participation of other ‘commoners’. This is important, because ultimately it gave colonialists the power to appropriate land and resources without the consent of native populations. In Locke’s state of nature the world was, to be blunt, up for grabs – as long as it was grabbed in the right way.

The right way, as is well known, relates to the use of labour, as Locke argued in one of the most famous passages from the Second Treatise:

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Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property.

(Locke 1988: 287–8)

Because it relies upon the so-called natural law principles of selfpreservation and self-ownership – rather than upon political or legal society – such a form of appropriation can take place without the consent of others, at least where there is no recognised political society to regulate ownership (ibid: 286). This right of appropriation is, however, limited by two provisos – the appropriator must leave ‘enough, and as good’ for others (ibid: 288), and that it is not permissible to appropriate more than it is possible to use without spoilage (ibid: 295). However, it is legitimate to exchange a thing which spoils for one which does not, meaning that this second proviso (which would otherwise prohibit over-accumulation) did not apply once money was invented (ibid: 300–1). Locke viewed money simply as the means of storing an excess without wasting it or injuring others: thus, once accumulation becomes possible by storing money, the foundations and indeed justifications for inequality are laid (Bell et al. 2004).

Liberty and the individual

Locke’s person was not owned by another, but by the self. The person is, and is not, property. Rather than state definitively, as Kant did a century later (1930: 165), that persons cannot be property, Locke started with the paradoxical notion that persons are property, their own. It becomes clear very quickly, however, that the universal rhetoric of his statements about ‘every Man’ does not actually apply to all men or to women. Locke challenged certain social hierarchies, in particular those which gave absolute political power to the monarch and aristocracy. At the same time, he explicitly reasserted the hierarchies of class and gender, and strengthened the (at that time) less entrenched racial and cultural distinctions: thus, one key critical position concerning his work focuses upon the limited scope of his description of human liberty. As Barbara Arneil illustrates in detail,

90 Property: Meanings, Histories, Theories

despite its critique of feudal status, Locke’s world-view remained essentially hierarchical. This hierarchy was drawn in relation to property, the public/private distinction, and according to race, class and gender:1

His theory seems to imply that free male citizens have ultimate authority, but . . . their wives have similar authority within marriage over their children, servants and slaves . . ., servants have rights over their own lives and wages . . . but not their labour; ‘Indians’, who should not be enslaved into the domestic sphere of another, have rights over basic subsistence . . . but not over property in land . . . and, finally, African slaves have no rights of property whatsoever and are to be fully submerged in the private sphere . . . It is crucial to note that in each of the last three categories (servant, Amerindian, African slave), there are both men and women, whose status in relation to property far outweighs the di erences between them based on gender.

(Arneil 2001: 41)

Thus, despite the principle that every man owns himself, Locke nonetheless assumed the legitimacy of slavery, and of other class distinctions. ‘Man’ was free from domination in the state of nature, and was free under political rule from all domination except that which had been established by consent: slavery, however, was the consequence of a third condition – the state of war – and slaves were essentially the legitimate spoils of lawful conquest (Locke 1988: 284). In other words, Locke’s self-owning man was basically the free capitalist accumulator: not his wife, his male or female servants and agricultural labourers, and much less his slaves. Outside the household the ‘Indians’ in the state of nature were free to appropriate, but only under the conditions set by natural law: that is, without money they could not accumulate property, but only appropriate as much as they could productively use.

On the one hand, law has obviously passed beyond these social distinctions. Slavery has been abolished in law if not in practice, wives have been freed from the legal incapacities which once subjected them to their husbands, and Indigenous people have a formal equality with the non-Indigenous. The status of those household servants who have survived the social transitions of the past several hundred years is the more dignified one of ‘employee’, and breaking an employment contract is no longer a criminal o ence. Nonetheless,

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the old Lockean hierarchies remain embedded in the symbolism and the broad cultural resonance of property: distinctions of gender, race, and class still inflect what it means to be a person and a proprietor, and persons as proprietors remain one norm of contemporary legal and political discourse. In other words, the meaning of property and the meaning of the person remain intermingled in a network of racial, class and gender associations.

For instance, in Chapter 2 I considered some of the symbolic implications of this picture of the person as an essentially selfenclosed, or as Nedelsky puts it, ‘bounded’ entity (Nedelsky 1990; cf. Na ne 1997 and 1998). In particular, I noted the strong resonance of the self-proprietor with the image of the white, Western, propertied male: on the level of representation, the self-possessed person connotes membership of a specific culture, class and gender. Common law history also shows that legal personality has been associated with the ability to own, and with the right of physical self-possession. Thus women, whose bodies were controlled by fathers and husbands, and who could not own property in their own right (at least when married), were not ‘persons’. Similarly, as I will explain shortly, ownership or custodianship which was not based on the liberal model of individual and private ownership, was often not recognised as ownership at all, and nor were the holders of such property viewed as persons.2

A first critical response to Locke’s self-owning person is therefore that the principle is not extended to all. Locke clearly thought it was reasonable to exclude certain classes of people, in fact most people, from the liberty and self-governance which goes along with selfownership. From a modern perspective these exclusions are easily dismissed as based upon on a narrow or only partially enlightened understanding of human relationships and capacities (Parekh 1995). Indeed, the notion that people naturally own themselves and have a moral right to the fruits of their own labour, has for centuries provided an immensely powerful argument for many emancipatory projects. Marx insisted that the worker ‘must be the untrammeled owner of his capacity for labour’ who can sell it for a limited term only, ‘for if he were to sell it rump and stump, once for all, he would be selling himself, converting himself from a free man into a slave’ (Marx 1947: 146).3 Feminists have also used the idea extensively in campaigning for women’s bodily self-determination including reproductive freedoms.

Even when equalised and modernised, however, the image of