Do libertarians generally believe that property is a conventional relationship? These kinds of arguments usually bug me because they seem to take for granted what we’re talking about when we talk about property. In particular, they seem to approach property from the assumption that we’re talking about material wealth or “social surplus” or something, divorced from what property is and what it does for people. Then such arguments evolve into whether the legal concept of property is separable from the rules of law, or whether ownership is just a social convention as opposed to natural, and all this sort of stuff, which quickly becomes jargon if we don’t keep constantly in mind that we’re talking about people and their relationships to things.
Here’s a piece of property.
This is my wedding ring. I paid about $250 for it. As you can see, it’s not especially pretty. But it means a great deal to me. It’s made of titanium—but not pure titanium; it’s an alloy. In fact, this ring is made out of an engine part from a Pratt & Whitney J-58 turbojet engine that powered SR-71 tail number 17980. This airplane is of significant importance in my family for reasons I explained here. And it is a critical way of expressing my feelings toward my wife, who, as an Objectivist, appreciates the “Rearden Metal Bracelet” nature of the ring.
This piece of property is extremely valuable to me. It’s worth can be measured in dollars, but only imprecisely, so far as I’m concerned. This is, of course, sentimental value, and I think anyone who has ever owned something similar can understand that that term does not diminish its importance—which sometimes seems to be the way people take the term “sentimental value.” All value, I think, is in some sense sentimental. Not subjective—but personal and individual-centered.
Is this ring’s value to me conventional? Would it exist aside from the legal background? Well, in some sense it is conventional. If there weren’t such conventions as wedding rings, or marriage, for example, I suppose it wouldn’t have the same value to me. But those conventions aren’t just imposed on me. I could choose to reject them, and many do; I choose to embrace them. And while the legal background surely has some relationship to the ring’s value, it doesn’t create the ring’s value in any significant sense. I would value it the same if I’d got it for free, and I’d be deeply bothered if it were taken from me forcibly, no matter what compensation I received in monetary terms.
The point is that the relationship between law and ownership is, I think, far more rich and dynamic than these kinds of debates tend to acknowledge. When I recognize something as mine, I’m not just saying that under the rules society abides by, I can demand enforcement of my ability to exploit that resource. And when I recognize something as yours, I’m not just saying that I would be punished for taking it. Ownership is an elaborate way of expanding the sense of self into the external world, and, simultaneously, of defining oneself in contrast more sharply against the outside world.
By expanding the self into the external world, what I mean is something akin to “the extended phenotype”: I can expand my mind into the outside world by using property. When I write, for instance, I draft something, then strike it out and edit it, and rewrite it, or use the manuscript to remind me to look up stuff, and then go back and change things and maybe even change my mind about something...the point is, I use the property in a sense to make up my mind. I mean that phrase literally: I create what I think by using the paper and the pen. Likewise, I don’t have to memorize things because I use my books, or my iPhone, or my souvenirs, to remember things for me. Property plays a dynamic role in my consciousness, both preserving the past and helping me create the future. That’s a far richer picture than the typical nature/convention argument recognizes.
As far as distinguishing self from other is concerned, property helps me to secure myself from danger, but it also allows me to more objectively note the differences between myself and the rest of the world. The distinction between self and other is critical for any living creature. It takes elaborate and exotic forms in some—think about the ring of guano that blue-footed boobies use to distinguish self from other, for example. In human beings, it takes the form of a complex web of behaviors, conventions, rules of etiquette and law—but it also takes the form of an internal settlement of the self and one’s personality, which was best expressed by Frederick Douglass. When he escaped slavery, he wrote of the profound feeling he had when he first earned money at a job. To know that his hands were his own, he wrote, and that he belonged to himself and not to someone else, was a profound personal experience. I find it very hard to consider that experience a mere social construct.
When we talk about whether ownership is a natural relation, or say that rights have conventional components, it becomes too easy to force the individual’s relationship to property into a preselected set of categories that that relationship does not fit. That becomes clear when we switch out “property” and replace it with, say, “love” and see what we come up with. Is love a conventional relation or a natural relation?
Well, in one sense it’s natural. Love is not something that social rules dictate to us; we love based on our own needs as living beings of a certain kind. And yet we have wrapped love in a set of conventions and rules that simultaneously channel and express the relationship that we refer to as “love.” Indeed, it’s hard to imagine how a person would think about love if he had never heard of things like poetry or flowers or wedding rings or marriage certificates. And yet anyone who’s ever been in love knows that there’s something extremely profound, personal, and ineffable about the experience of love that is simply not reducible to such elements and does not originate in them. It’s an experience—a dynamic, creative and preservative experience—that at once expresses, creates, and protects the individual personality. Love, like property, may not be determinate outside of legal conventions—it certainly has conventional components. Those conventional components may even make the practice of love appear radically different in different societies. But that doesn’t mean it’s a social construct, or that it can be radically altered through social engineering. I think all that I have said about a ring or books is equally applicable to money or real property. Obviously property plays an important role in economic relationships and social ordering. But I don’t see that as categorically distinct from the personal relationships I’ve been talking about. Love, too, plays an important role in economic relations and social order, but that doesn’t mean love is a social construct.
You can put this in Hayekian “spontaneous order” terms, of course, and say that the conventions that have grown up around property are undesigned—that’s fine. But that doesn’t address the basic question of whether love or property are something aside from the fact that we just all agree to create these allegedly fictive relationships. I don’t think love or property are fictive relationships. I think they’re natural in the sense that they have their roots in what kinds of creatures we are, and then we express them in ways that set in motion a complex of conventions and rules. So I prefer to put it in Audenian terms:
I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.