Tag Archives: Private Property

On Ownership

This post is part of the continuing “On” series: others include On Capitalism, On Freedom, On Constitutionalism and On Privilege.

In Wall Street: Money Never Sleeps, Gordon Gecko – famous for the line that defined the 80s, “greed is good” – relates the secret of his success: “I own stuff.”

By acquiring ownership of appreciating assets, investors buy low and sell high, and real estate is a prime example of this. But as Iʻve come to own property, it has begun to dawn on me that one never really owns anything. There are many ways that a property can be foreclosed on, beyond simply failing to pay the “mortgage” (you actually pay the loan, the mortgage is the contract allowing foreclosure): failure to pay taxes (a tax lien), failure to pay maintenance fees, failure to pay any “mechanic” who does work on your house (a mechanic’s lien). Taxes in some high-value areas can be in the thousands per month, so even if you own your property free and clear, the cost of living there can be prohibitive, as much as a “mortgage.” Further, you donʻt really own property at the most fundamental level. The legal concept of “dominium” means that the sovereign owns all property at a level “beneath” your “ownership” – what you have is actually a bundle of protected rights to the property: the right to use and enjoy, exclude others, etc. (though this last right is abridged in Hawaiʻi due to Native Tenant Rights).

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At a conference on occupation at Cornell last May (my attendance was due to this article I wrote for The Nation), we looked at the term from various perspectives, including the simple occupation of land

As I write this, Hawaiʻi is in crisis. The basic necessity of a roof over oneʻs head is one of the most difficult “commodities” to afford, and hereʻs the thing: many of us are responsible for this state of affairs. Homeowners benefit from raises in housing prices, and have a vested interest in the continuation of this state of constant increase – that is, as individuals. Even this benefit is, in a sense, short term. When you sell your high priced property, you have to buy back in to an inflated market. Also, housing becomes much more expensive for your children, who youʻre trying to help get along in the world. It becomes a form of generational warfare. The situation is so extreme, that even renting is becoming a difficult proposition for many – credit checks, first and last monthʻs rent and/or deposits can make renting something only for the very well-off. (If you had great credit wouldn’t you be buying instead of renting?). According to an article in Civil Beat, thirty percent of renters are spending half of their income or more on rent, making them very vulnerable to shocks, like divorce, death in the family or medical problems.  Add this to the fact that most Americans donʻt have $1000 for emergency expenses, and the situation is dire indeed.

Ironically, some long-term studies show that property, when adjusted for inflation, has not had real increases in a century. Any exceptions to this are bubbles. So are we in the midst of a very protracted bubble? If so, we may want to change our long-term approach to wealth management. I wrote earlier that the wealthy are beginning to thinking about access rather than ownership, an this has begun to trickle toward the middle class and working poor. We need to begin to question the very fundamental assumption that the market is the best mechanism for allocating scarce resources, like real estate. There are some small moves in this direction: Kamehameha Schools (normally a very aggressive developer) is developing its Oʻahu North Shore lands in a way that takes some other factors into account. Priority for a new development in Haleʻiwa will be given to local (that is, North Shore, and often Hawaiian) families who fall into the “gap group” – imagine a teacher married to a fireman. They arenʻt in lucrative positions, but are a stable bet to pay their loan and stay in their house for decades, rather than sell at the first uptick in prices.

Perhaps we should try to return to traditional Hawaiian ways of thinking about ownership. According to a source I cite in my dissertation, Hawaiians had very few possessions. A man, for instance would own only a handful of items related to his trade. So the idea that one could own land was certainly foreign – even chiefs didnʻt own land – they controlled it for a period of time, until the next kālaiʻāina (land division).

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Locke and Property

This post, along with the one on Rousseau, Plato and many to follow, are part of an upcoming project – stay tuned.

The United States incorporated a Lockean notion of relation of individual to state, a notion that was “dominant at the time when the [US] Constitution was adopted.” In common parlance, the term property is used as a noun. One is said to own “property,” i.e., a piece of property, an object. Locke’s time used property as a right, as in “I have a property in that land.” This shift occurred sometime in the seventeenth century [see Appleby] in Europe, and was present at the founding of the US, but in Hawaiʻi, it was more visible, occurring in the time period in question, the 1840s and 1850s. So in addressing the question of the transition from property as a right to property as an object, some of the associated trauma can be attributed to the fact that the shift was both later and more rapid in Hawaiʻi than in Europe.

John Locke

Locke expounded his notion of property in his Two Treatises of Government, Second Treatise (1690):

… every Man has a Property in his own Person. This no Body had 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 joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men. For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others.

Sec. 43. . . . . ‘Tis Labour then which puts the greatest part of Value upon Land, without which it would scarcely be worth any thing . . . . For ’tis not barely the Plough-man’s Pains, the Reaper’s and Thresher’s Toil, and the Bakers [sic.] Sweat, is to be counted into the Bread we eat …

Sec. 45. Thus Labour, in the Beginning, gave a Right of Property, where-ever any one was pleased to imploy it, upon what was common, which remained, a long while, the far greater part, and is yet more than Mankind makes use of.

The application of Lockean ideals in Hawaiʻi was premised on a particular psychology subcribed to by missionaries:

In some ways the missionaries … were equipped with a full-fledged theory of the human mind and society … Their psychology started with the empiricist idea od the mind as filled with custom, hence subject to outside influence and change. The follies and whims of the human mind, perpetuated by custom, as Locke and the enlightenment thinkers would say, are a result of insufficient use of the reason due to social circumstances (Mykkänen, 2003, 80).

Responding to Hobbes’ more radical notion that “everyman” has a right to everything, Locke held that it was a “ridiculous trifling to call that power a Right, which should we attempt to exercise, all other Men have an equal Right to obstruct or prevent us” (Tully, 1980, 74). This separation of rights represented a building of consensus over rights in property that the state was being encouraged to protect.

The foundation of the debate rested on the notion of natural rights, on the existence of which there was considerable agreement. The debate centered, instead, on the manifestation of natural rights in the actual world of property ownership. The interpretation of these rights rested, in turn, on the idea of the social contract. Pufendorf held, in response to Hobbes, that “rights of property have no higher sanction than the laws which men consent to in entering political society” (Tully, 1980, 75).

            Ivison, Patton and Sanders summarize the larger picture of interaction between “Western” political thought and Indigenous societies, values and systems of property:

Western political thought has often embodied a series of culturally specific assumptions and judgments about the relative worth of other cultures, ways of life, value systems, social and political institutions, and ways of organizing property. As a result, egalitarian political theory has often ended up justifying inegalitarian institutions and practices” (Ivison, Patton and Sanders, 2).

They contend that “finding appropriate political expression for a just relationship with colonised indigenous peoples is one of the most important issues confronting political theory today” (Ivison, Patton and Sanders, 2).

Defining “rights” as that “securing or protecting fundamental human interests, for example, those to do with property or bodily integrity,” they note that recognition of Indigenous rights will entail a fundamental alteration of those rights. Further, the note the failure of western political theory to enter into dialog with Indigenous peoples over the issue of rights in general, and, I would add, property rights in particular.

Ivison, Patton and Sanders also address the issue of indigenous title, and hold that it is “more about the continual definition and redefinition of relationships rather than the simple vindication of a property right.” This notion suggests the primacy of communal title and further its contrast with individual title. In fact, New Zealand’s Maori Land Court had as its primary task the “individualisation” of Maori title – a practice viewed as facilitating alienation of Maori lands.

Tully (99) notes that, for Locke, “it is never the case that … property is independent of a social function.” He distinguishes between property as a natural right and “political property,” which succeeds it and is only then private property. Locke opposes Filmer, Grotius and Pufendorf on this point. He holds that the natural property rights in the state of nature precede “the systems of property that arise later with the introduction of money and the creation of government.”

This, of course, is subject to critique, as the notion of a state of nature prior to government was what facilitated the doctrine of terra nullius. Thus the notion of a state of nature itself is contingent on one’s ability to see a government – which settlers in Australia claimed not to be able to do. Locke had a similar blind spot when it came to the “new world.” Locke worked as an aide to the Lord Proprietor for the Carolina colonies. His work justified slavery in the Carolinas and he was a shareholder in the Royal African Company, which was involved in the African slave trade. Locke clearly believed in property, but his belief in liberty was more constrained. Farr (2008), however, holds that Locke forwarded a just-war model justifying slavery, but one that did not apply in the Americas, but only in Stuart England.

Between Locke’s Eurocentric notions of property and government and inconsistent position on slavery, the implementation of a Lockean private property regime in Hawai’i was indeed problematic.

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