Excludability, baselines, and property rights

JKSCHW at aol.com JKSCHW at aol.com
Tue Feb 8 08:31:12 PST 2000


The comments--Daniel's, & Brad's--quoted below seems important to me and more worth discussion than whether it';s rude to use the term psychotic. Brad, I think, says, if I may paraphrase, that property rights, like other rights, are right of exclusion, that these rights are social artificts enforced by the juridical system, and that we often don't notice this, taking them for granted in an unquestioned way.

Daniel responds that this sounds like commodity fetishism as Cohen describes it, as a sort of cognitive illusion. I agree, and I also think that Cohen doesn't have commodity fetishism right, but I want to suggest that the ideological illusion operating here is a more basic one, that of taking the social and (here) the contingent as natural and (supposedly) unchangeable.

This is a real standard move in libertarian labor theory of property rights theories (to be distinguished from labor theory of value!(, on which property rights are determined by having worked on stuff that no one else has a right to or having acquired taht stuff by voluntary exchange. Locke and more recently Nozick hold theories of this sort. In law, Richard Epstein of the U of C law school is the big proponent of this view. Theories of this sort are rightly called "natural rights" theories because they supposedly derive current property rights from some sort of presocial, prelegal state of nature. On this sort of theory, legal rights are supposed to track natural ones, and natural ones are the sort described here.

Now there are lots of problems with this sort of view, but the one Brad and Daniel are on to seems to me to be fundamental. Cass Sunstein, the left ("civic republican") Chicago law prof, a colleague of Epstein's, charactertizes the problem in term sof baselines. The question is, where do we start? What is the base line? Epstein suggests that there is a tendency to start as it were, where we are. and to take the existing distribution as natural. We don't notice that it wouldn't exist without a vast superstructure of law to maintain it and that it was the product of legal decisions and political action.

That is in part why there is a tendency to look at government intervention into market results as "intervention" into the "natural" operations of the markey, as if the creation and enforcement of property rights and contracts through the legal system were not "government intervention." This is a very deep illusion, and it underlies most of the political rhetoric of (certaibly) the last 20 or 30 years, if not the last 200 or 300 years. Sunstein is quite good on this point, and I recommend his books The Partial Constitution, Social Justice and the Market (not quite the right title), and a new book he coauthored on taxation.

I think this may be a useful way of framing the issue for purposes not only of understanding things but also--possibly--changing minds.

--jks


>10. That excludability is a very important foundation for the market is

suggested by the fact that governments felt compelled to invent it.

Excludability does not exist in a Hobbesian state of nature. The laws of

physics do not prohibit people from sneaking in and taking your things; the

police and the judges do. Indeed, most of what we call "the rule of law"

consists of a legal system that enforces excludability. Enforcement of

excludability ("protection of my property rights," even when the commodity

is simply sitting there unused and idle) is one of the few tasks that the

theory of laissez-faire allows the government. The importance of this

"artificial" creation of excludability is rarely remarked on. Fish are

supposed to rarely remark on the water in which they swim. See Brad J. Cox,

1996. Superdistribution: Objects as Property on the Electronic Frontier.

Reading, Mass.: Addison-Wesley.

Now I'm the dumbest, most bourgeois bastard ever to have read one of Jerry

Cohen's books (ask him if you don't believe me), but even I can see that

this is something very like commodity fetishism, and a citation of Marx

might be apropos, rather than some random cyberfuturist. Would that be

"more than my job's worth", or is Brad J Cox incredibly famous and yet

again I missed the boat?

Oh yeh, and although fish rarely remark on the water in which they swim,

Eskimos (or at least Central Alaskan Yupiks) have about fifteen words for

snow. Check it out http://www.rt66.com/~srlee/OOOWOO/eskimo.html

All of which is pretty much irrelevant to the central point of Brad's

article, but by now everyone should have realised that I'm wasting time.

dd

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