the matter of property

"The great and chief end, therefore, of men's uniting into commonwealths and putting themselves under government is the preservation of their property" (Locke 101). The implications of this simple, direct statement are staggering. Locke takes the position that neither liberty nor security nor even life is the driving force behind man's propensity to form organized society. The fundamental impetus of social association becomes property. It is hardly a flattering or enlightened view of humanity. Visions of suspicious, miserly people overcome with cupidity and greed swim to the forefront of the imagination. Most people prefer not to view the human race as controlled by avarice and mistrust. At first glance, his statement seems outrageous, but it rings a truth that strikes truer than we might wish. What else do we have to fear from fellow humans but the possibility that others may take what is ours. Most people are not inherently malicious; they do not harm others without motive. The most primitive motive, however, is property. If one person has what another wants, the most fundamental and basic way of acquiring the desired objects is to purloin them, and that failing, dispense with their owner. In a state of nature, liberty is usually only abrogated for the purpose of establishing slave labor, the object of which is to gain property.

One of the most fundamental questions at the heart of human rights debate is the issue of property. What may one properly claim as private possessions, and how far must a government protect them? How far may a government infringe upon property rights in the name of justice? Is the concept of private property valid at all? In order to put forth a reasonable examination of this topic, there are several points which must be investigated. First, the very definition of property must be established. Though it seems like a simple thing to do, the libertarian, socialist, and communitarian perspectives on society have widely different views on the subject of property, and their definitions are complex. Second, the valid existence of property rights as just claims of the people must be established. There is much dispute as to what a person may claim to own and what he must do in order to have a valid claim upon a thing or idea. Finally, there is also the issue of justifiable intrusion on property rights. There are inevitably circumstances where the government, an employer, or another authority have a good and just reason for confiscating, examining, or otherwise interfering with a citizen's property. In cases such as these, a balance must be struck that violates the individual to the smallest extent possible and still allows the necessary latitude for the justice system. This inquiry will seek to clarify all of these issues and ultimately show that property is a necessary condition and right in society that must be protected to the utmost but not to the extent that it hampers proper administration of justice.

Of all the traditional egalitarian human rights philosophers, it is John Locke who best ties the concept of property rights to the idea of a social contract. He contends that property is one of the most basic elements of human existence, one so inherent to the species that it is the ultimate driving force of state formation (101). Fundamentally, his idea is entirely reasonable. In a primitive state of nature, the only reason people need to fear other people is because the "other people" might take their property. Humans are naturally acquisitive and inclined to be lazy, so if property can be gained without expending much effort, that is generally what people try to do. After all, it is a lot easier to steal food than to go out and work to gather it. How infinitely more simple it is to cast the occupant from his home and take over the well-stocked dwelling than to build and gather and make life's necessities for oneself. Aside from justice or vengeance, what other motive for murder is there in the state of nature than the desire to have what the victim owns? Humans do not hunt each other for food, and they generally do not kill each other from sheer malice. People die because they have what others want. What reason is there in the state of nature for denying a person his liberty other than to retain him as a slave and reap the benefits of his labors? There is no such thing as punitive incarceration prior to the arrangement of a social contract, so forcible denial of liberty may only be interpreted as slavery. Forced labor increases the property held by the master at little or no expense. Modern humans find the practice repugnant in part because it denies the slaves the rightful fruits of their labor. In the state of nature, conscious thought revolves largely around property and possession issues. People are constantly concerned with the things they claim as possession, the best methods for expanding their holdings, and the aptest means of protecting everything from everyone around them. The concept, understanding, and respect of property then, is one of the very fundamental elements of human nature.

To this point, I have been freely using the term 'property' without having assigned a definition to it. Before I can continue with this discussion, however, I must provide the term with appropriate constraints. According to John Locke, the first and foremost philosopher to address the issue of property, an object or idea becomes property after one has applied his labor to it (97). In this information age, the analogy may easily be extended to thoughts, ideas, personal documents, and other private information, whatever its storage method. This essay, for example, is my intellectual property because I have applied the labor and effort required to write it. The paper it is printed on is my property because I labored to earn the money with which it was purchased. Having mixed labor with materials, Locke contends that property rights are conferred upon the laborer/proprietor because of his proprietorship (97). In other words, property creates a permanent claim rather than the temporary custodianship implied by possession. Possession, in this case, is more an abstract concept than anything pragmatically definable. By Locke's definition, possession would be the physical custody of materials before applying the required labor. If, for example, I come across an untenanted tract of land that is neither owned in common nor administrated by any other authority, I possess it by standing on it and announcing my intent to make it mine. It does not become my property until I build a fence around it, plant crops in it, or build a structure upon it. The only flaw in this example is the fact that nothing is entirely unowned, not even in the state of nature. In a state of nature, all materials, land, and resources are owned in common. Everything in the world exists for the express purpose of maintaining people's existence, thus everyone has a common share in everything (Locke 97). They all have an equal claim to apply their labors to anything and call it their property. No prior private claims exist to resources that have not been properly claimed as property, but neither is there anything to prevent any person from making a proper claim. In his empirical treatment of property, Locke does not forget the legal aspects of property. Ever a rights-minded fellow, he takes into account the necessity that property be sacrosanct one it is established (97). His definition would obviously become problematic if people could simply take someone else's property, apply some labor to it, and then assert a claim upon it. Proprietorship applies to materials that are either held in common with the possibility of becoming privately owned or else have been determined to be under no other proper claims. He also takes into account the eventuality of one person claiming enough resources for himself that there is not enough left for everyone else. This too, is inconsistent with the view of property because you take from common holdings more than can be afforded you, thus going against the entire purpose of the world's existence. This is a clear violation of natural law and can not stand (Locke 98). Property, as it is described here, fits the common usages of the term in societies properly formed under the auspices of a social contract. Attention to human rights, which is the proper aim of any organized society, is well-served by this definition of property. There is minimum interference with the individual, so he is required to surrender a minimum amount of his state-of-nature freedom to the society's government. Government control is kept to level where tyranny is all but impossible, a condition consistent with a further aim of society to prevent the socially contracted institutions from incorrectly and unconstitutionally overpowering its signatory members.

Other philosophers, like Pierre-Joseph Proudhon, have a more socialistic bent and contend that property and possession are two entirely different things (176). Property is a legal concept and involves domination over a thing. Property rights give the holder "seigniorial power" over an object (Proudhon 176). Possession, on the other hand, is not a right but a matter of fact (Proudhon 176). Possession is simply the custody of a thing. There is nothing legal about it, just the bare truth of physical, not legal, ownership. As an example of this distinction, consider a wallet found on the street. The person who picks it up possesses it - he has custody of it. He does not, however, have property rights to it. The wallet legally belongs to the person who lost it. Proprietorship requires possession according to Proudhon's analysis (177). The man who picks up the wallet did not have any grounds for a property claim upon the wallet before he took custody of it. After it comes into his possession, however, he is entitled to claim proprietorship. He will not necessarily get it, since someone else, the original proprietor, already asserts dominant power over the wallet. This definition of property, however creates more confusion than it resolves. Who, really, has the right to claim the wallet as property? The person whose picture is on the driver's license in the wallet? The craftsman who made the wallet? The employer who pays the wages that bought and are stored in the wallet? The credit card company who issued the credit card that is paid for by money stored in the wallet? Clearly, this definition is inadequate when it comes to the assignment of property rights. Locke would say that the wallet was the property of the craftsman until he disposed of it by exchanging it for currency. The person pictured on the driver's license is the proper owner of the wallet, since it was acquired by an exchange for money earned by the fruits of his labor. The employer has nothing to do with it, since the wallet's owner exchanges his labor for the company's money, thereby making it his. Proudhon claims that property as a legal concept is nebulous and problematic (by his definition it is) and should be abolished, a point I shall address shortly (177). In his view, possession is the only thing that really matters and the only valid theory regarding ownership (177). His contention, then, is that permanent and lasting entitlement implied by the term 'property' should not exist. The core of his definition focuses on the difference between a right to a thing (possession) and a right in a thing (property). This distinction splits proverbial hairs, indeed. This two-fold view of possession and property, while it does hold some truth, forms a shaky definition which aims more to find a legal loophole than anything else. By claiming that property and possession are two different things, Proudhon creates the basis for his claim regarding the abolition of property. Locke's simpler labor-oriented definition provides for all the distinctions Proudhon calls for.

The issue of property rights, their existence, and their validity must also be settled. Once 'property' or 'proprietorship' is established, there are legal and moral implications that are usually governed in part by society. This governance takes the form of property rights. Said rights grant proprietorship to the laborer without requisite consent from any other person and give him the authority to dispose of his property as he wishes, provided he does not infringe upon another's rights in the process. In this regard, then, people cannot be property, as they were widely considered to be under the unfortunate practice of slavery. By designating them property, the slave 'owner' denied the slaves their liberty, a clear violation of their human rights and thus an unjust and inappropriate action. A similar analysis shows why thievery is a crime. One cannot indiscriminately plunder the property of others because that is an infringement of their property rights. Maximilien de Robespierre of French Revolution fame authored a document about property rights that addresses their implications more fully than does the fundamental treatment of John Locke's famous Treatise. The right to property, he contends, is governed by four primary truths. First, property is the right of every person to enjoy and dispose as he chooses of the portion of goods allowed to him by law. Those goods allowed to him by law, of course, are the materials upon which he has made a proper claim by earning or laboring for them. Second, the right of property is necessarily limited by an obligation to respect the property rights of others. Third, property rights may not be exercised in such a way as to compromise the security, liberty, life, or property of any other member of the society or the society as a whole. Finally, any property claims or dealings that do not conform to these constraints are unlawful and immoral (Robespierre 159).

As I mentioned earlier, Pierre-Joseph Proudhon takes a radical stance in denouncing property rights as non-rights that are inconsistent with the existence of society. He claims that most poorer citizens, the members of the socialists' beloved proletariat, do not enjoy property rights. To the poor, property rights are supposedly a "dormant faculty without exercise" (Proudhon 178). He further claims that it is susceptible to abuse that is inconsistent with its customary label as an unalienable human right (178). Though he does not elaborate, it is presumed that he is referring to more questionable property dealings like blackmail, extortion, inheritance of large estates, hostile takeovers of both assets and physical property, and agglomeration of resources into more property than any one person "ought" to own. In the first place, any right has the potential of abuse. Hostage-taking, for example, is both an abuse and a violation of the right to liberty. Everything, then, that is flagrantly immoral and illegal most likely has a machinery already in place within the society to deal with it. The grey areas present the most significant challenge to property rights. Large inheritances, for example, are often questioned on the grounds that the heirs do not do anything to actually earn the property rights to their inheritances. To those who have little, it seems grossly unfair that someone who does very little work is so richly rewarded while the hardworking poor don't even have a chance to acquire some of the newly-liberated property. Recall, though, that once a proper claim has been established, the proprietor may dispose of his property however he wishes. If he wishes to give it all to his children, that is his prerogative. The government may no more interfere with the rich man's estate than he may interfere with the poor man's hard-earned wages, an action which would surely bring an outcry even while the poor demand a share of the rich man's property. The same is true of the man who has a stroke of financial luck and begins buying up all the land he can find to build a huge estate. Just because he had the good fortune to gain the means of obtaining so much property does not give anyone the right to stop him on the grounds that others do not have as much. This is not to say that the rich should amass and hoard all the wealth they can. Proudhon's argument and Robespierre's treatment of property rights open up a very interesting side of rights in general and of property rights in particular.

In every society, it is an inevitable necessity that with rights comes responsibility. In the most basic sense, everyone who wishes to exercise a right must take care that said exercise does not do anything to injure the rights of anyone else. To use a common phrase, my right to swing my fist stops at your nose, and I have a responsibility to make sure it stops in the right place. The same is true for property. Especially in our currency-driven society, the way in which one person disposes of his property can have far-reaching effects on the value of others' property. There is also the moral issue surrounding the disposal of property. With regards to these aspects of the right to property, the communitarian position steps into the spotlight and offers solutions. In a communitarian state, the government takes the role of caring parent, not oppressive tyrant. As such, it would naturally support charitable endeavors. The wealthy, communitarians and socialists alike would claim, have an obligation to look after the unfortunate people in society. The building of orphanages, veterans hospitals, homeless shelters, daycare centers, community centers, and other such structures is noble and is expected of those who possess the means. Giving money or life's necessities to the homeless and hungry is something people who have surplus property can and should do. In a strictly libertarian or egalitarian society, the matter of charitable contributions is left largely to the individual. In a communitarian society, the government may wish to impose a graduated tax, as advocated by Robespierre (159), such that people who have more, pay more to the government. The funds are then used to help the unfortunate. This form of taxation is frequently viewed by libertarians as unjust; they claim that it is unfair to require people to pay more, percentagewise, of their income simply because they had the wherewithal to acquire larger amounts of property. Again, however, we must look to the responsibility entailed in the enjoyment of rights. If one wishes to enjoy the right to property, he must exercise it in a just and responsible way. To allow hapless individuals down on their luck to simply fall by the wayside is not a responsible thing to do. The social contract is meant to lift all members of a society out of the uncertain state of nature and provide them with the benefits of civilized citizenship and human rights protection. If such a contract is to function, the people of the society must want it to. A society that does not help them in their times of need provides them little if anything over and above the conditions in the state of nature. It is in the best interests of both the government and the other citizens who enjoy the full advantages of the society to provide as best as they are able, with minimum violation of human rights, for all people in the society.

The government looks after its citizens and does what must be done to serve the well-being of the society as a whole, even if it means infringing upon, but usually not revoking, human rights. An example of this philosophy is the drug enforcement checkpoint outside Detroit put forth in Roger Conner's article. Stopping drivers to demand their drivers licenses and proof of insurance may have inconvenienced them and perhaps even violated their 'right to be let alone' to a certain degree, but the checkpoint served to ensure the community's safety and well-being. It was also effective in reducing and even temporarily halting the drug trade which made their town so dangerous (Connor 89-90). Communitarians would contend, as would most people with good common sense, that it really is not a big deal to ask people for their driver's licenses, and the rights 'violation' is small enough to be outweighed by the benefits of operating the enforcement checkpoint. A similar philosophy applies to the right to property. It asks when the government may intervene on behalf of the society at large with the exercise of individual property rights. This is especially relevant to questions of real estate, as outlined by Donovan Rypkema (114). In every community, there exist formal ordinances governing the proper use of land. The purpose of these laws is to protect the value of the surrounding properties. One may not, for example, erect a structure whose openly avowed and well-advertised purpose is to serve as a brothel in a residential neighborhood in many places. Such an action negatively impacts the value of all the homes and businesses near the new structure, and citizens rightly cry out against this tampering with their property rights. The laws exist primarily to avoid the endless process of trying to settle matters such as these on a person-by-person basis (Rypkema 115). It may just as easily be argued that the individual who wishes to build the brothel is only exercising his property rights, and the government may not interfere with that. In the interests of the society at large, however, the government is justified in its mild property rights intrusions here. In this case, rights come into conflict, and the government rightly solves the conflict by intervening to uphold as many rights claims as possible, like the community vs. the single landowner. The landowner has a responsibility not to go barging into residential communities that he does not intend to respect and erect offensive structures. What Rypkema says is very true when he quotes Adam Smith, " 'As soon as the land of any country has all become private property, the landlords, like all other men, love to reap where they never sowed.' That doesn't mean we are depriving them of rights when we tell them no" (120).

Finally, the ever-contested issue of the right to privacy as it applies to property rights needs to be addressed. Ellen Alderman and Caroline Kennedy have published an excellent book that, in part, addresses these issues. They address privacy of property with regards to law enforcement and employers, two areas where the right to property may justifiably be compromised. They make a special point of discussing the extent to which property rights may be compromised. In pursuit of criminal justice, it is not unusual that a private citizen's dwelling, automobile and/or other possessions may be searched in a quest for evidence or other information. Under modern American law, the home or domicile is inviolable and may not be entered or searched without proper judicial authorization, usually a search warrant. Americans are so concerned about their property and privacy, that an ill-defined but omnipresent zone of land around the house is also protected from government intrusion without proper authorization. (Alderman, Kennedy 25). Cars and other possessions do not enjoy such a great level of protection; since they are movable, they are more susceptible than homes to alteration and relocation. Though it is preferred that a properly legal warrant be obtained, a law-enforcement officer may search the vehicle or possessions in question if he has probable cause to suspect illegal activities or possessions (Alderman, Kennedy 29). In the interest of pursuing justice and keeping the society safe from dangerous individuals, the government is entirely justified in its infringements onto private property rights. Without such capacity, our law-enforcement officers would be completely ineffectual in actually enforcing the law. Another prominent and hotly debated issue involves employers and the property rights inroads they may make in the interest of preserving their business and providing a safe environment for their employees. Electronic mail, telephone conversations and messages, and written communications (intellectual property) are monitored and confiscated on a regular basis (Alderman, Kennedy 275). Many workers protest these property rights 'violations' on the grounds that any private or personal material contained in their correspondences is unfairly confiscated and disclosed to their employers. These allegations are easily answered. Whatever a person does on company time is company business, and whatever an employee does with company resources is, likewise, company business. That is simply just the way business works. The company provides workers with compensation, or property, in exchange for their labor. Employees are not to spend their labor hours attending to personal matters. That does not, however, give employers license to indiscriminately make employment decisions if questionable material is intercepted, as is sometimes the case (Alderman, Kennedy 311); accused individuals still have a right to due process. It is, however, very much a price of employment to have intellectual property confiscated or monitored while working for a company.

From the material presented here, it is plain that the right to property can be a very complex philosophical and pragmatic issue. Of all the property rights philosophies studied, the libertarian/egalitarian presents both the best definition of property and the best conception of property rights. The strict libertarian interpretation, however, is rightly tempered by communitarianism, which allows justice and social welfare to place reasonable circumscriptions upon the unbridled right to property, allowing all members of the society to enjoy it with an appropriate degree of responsibility.

Works Cited

Alderman, E. and Kennedy, C. The Right to Privacy. New York: Alfred A. Knopf. 1995

Conner, R. "Checkpoint at Inkster: Reasonable or Unreasonable." Rights and the Common Good. Ed.
Amitai Etzioni. New York: St. Martin's Press. 89-91, 1995.

Locke, J. "The Second Treatise on the State of Nature." (1690). The Human Rights Reader. Ed.
Micheline R. Ishay. New York: Routledge. 158-160, 1997.

Proudhon, J.-P. "What is Property? Or, An Inquiry into the Principle of Right and of Government." (1840). The Human Rights Reader. Ed. Micheline R. Ishay. New York: Routledge. 175-184, 1997.

Robespierre, M. de. "On Property Rights." (1793). The Human Rights Reader. Ed. Micheline R. Ishay.
New York: Routledge. 158-160, 1997.

Rypkema, D. "The Misunderstandings of the "Property Rights" Movement." Rights and the Common Good." Ed. Amitai Etzioni. New York: St. Martin's Press. 113-120, 1995.