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A Misguided Enterprise?
By arlene | May 7, 2008
Some might claim that it is misguided to analyze property and property rights in the way suggested here because the notion of property is too fragmented to allow for a general theory. A provocative article by Grey seems to make this claim. He contends that the “disintegration” of property ultimately means that property “ceases to be an important category in legal and political theory.”‘
For Grey, “disintegration” seems to cover two kinds of development. One is the transition from a conception of property as material “things that are owned by persons” to a conception of property as a “bundle of rights” and as including “intangibles.”‘ Persons in the eighteenth century and the ordinary layperson today are said to use the former conception, and modern capitalist economies are said to employ the latter. The other development is the proliferation of specialized conceptions.’ Grey believes that specialists now use the word “property” in different, sometimes conflicting ways. Law teachers see the “law of property” as dealing primarily with land. Some lawyers and some economists think of property rights as being in rem rather than in personam. Other lawyers conceive of property as whatever is protected from being taken by the government for public use without just compensation. Other economists view property as an entitlement whose purpose is to advance allocative efficiency. Some legal theorists conceive of property as including not only private-law rights but also public-law entitlements such as welfare assistance. In short, when various specialists today separate property rights from other rights, they use the word “property” in widely divergent senses. Grey maintains that the disintegration of property stems neither from the socialist “attack on capitalism” nor from the advent of a “mixed economy.”‘ “Rather,” he says, “it is intrinsic to the development of a free-market economy into an industrial phase.”‘ The creation of new forms of enterprise requires the splitting or fractioning of the ordinary conception of property.
How does Grey get from this account of disintegration to the result that property is an unimportant category in legal and political theory? Stripped to essentials, the argument seems to involve a quartet of premises and a trio of conclusions:
P1 The eighteenth-century conception of property, which is also the ordinary conception, views property as the ownership of material things.
P2 Traditional capitalism supported property understood according to that conception.
P3 Traditional Marxism attacked property understood according to that conception.
P4 Because of disintegration, property today is not identical with the ownership of material things.
Therefore:
C1. Traditional capitalism is undermined.
C2 Traditional Marxism is undermined.
C3. Property is no longer an important category in legal and political theory.
This argument is thought-provoking but unsound. Consider the premises. P1 is overdrawn. Eighteenth-century thinkers, such as Blackstone, already recognized various forms of intangible property. Examples are such future interests as reversions and remainders and such incorporeal hereditaments as peerages, tithes, and advowsons. Many laypersons today consider copyrights, patents, and trademarks to be property. Thus, what Grey calls the “eighteenth- century,” or “ordinary,” conception is narrower than the “popular” conception of property described in ยง 2.1. Its narrowness indicates that it fails to capture adequately how these people think of property.
The accuracy of P2 and P3 turns largely on how much weight is put on the word “traditional” in characterizing the early history of capitalism and Marxism. Perhaps it is natural to see capitalism, at the beginning of the industrial revolution, in terms of tangible items: money (for wages), factories and mines, the goods produced. This picture is accurate to a degree, but it underplays the intangible elements in early capitalism, such as arrangements for commercial credit and the rise of the joint stock company. As for Marxism, at best only the early statements call upon a conception of property as the ownership of material things. In Marx’s Economic and Philosophic Manuscripts of 1844, the criticism of capitalism invokes the relations between alienation and private property. Even there it is a difficult question how far Marx saw property as tangible things. Yet his three-volume work Capital (1867) contains very little discussion of property. It certainly does not make private property the centerpiece of the critique of capitalism. Thus, P2 and P3 hold only if the very heavy weight rests on the most “traditional” versions of capitalism and Marxism. And in that case they fail to capture a significant part of the social and intellectual history of capitalism and Marxism.
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