Merrill cites John Locke on this who wrote, amazingly enough, that we should think of the world as originally "being America," that is a giant commons. For Locke it was mixing one's labor with the land that established ownership, a labor theory of ownership as it were. The matter of "accession" is posed as an alternative, but this simply involves a modification of this labor mixing principle, altering it to the first owner is the one who establishes effective control over the land. Once that is recognized, then a chain is established that simply continues, which is why we have this matter of the code holding when land first becomes clearly owned being the relevant one for later property transfers, particularly real estate ones.
Now in fact this does not really answer our question, although it does highlight important details to some extent, particularly when we consider Locke's view of "America." Why is it that the Indians did not "own" the land, or were not considered to be the owners by the British (and Spanish and French)? Needless to say, certain areas were used regularly by certain tribes, arguably enough that Locke should have granted them property rights, unless he wanted to argue that they could not due to being subhuman or something like that (am not aware of Locke ever making such arguments).
No, obviously what is involved is recognizing that behind property rights, certainly in land, there is assumed to be some sort of government or state with an organized legal code and system of courts to enforce it, even if it is one that has evolved "spontaneously" a la the common law of Britain, in contrast to the continental codes derived from Roman law, although the argument of Shleifer and his allies about the differences between these has been way overblown and often full of errors, the famous "Legal Origins" QJE paper by Glaeser and him being notorious for its myriad mistakes, even as it is one of the most heavily cited economics papers of all time.
So, private property comes into play when a government with a legal system recognizes that somebody has "mixed their labor" or otherwise assumed some recognized degree of control over some land with, very importantly, that person recognized as someone with legal rights to do so within the law code of the state involved, with that state itself ultimately having some degree of control or claim to control the land in question.
Econospeak
More On Owning Unowned Land
J. Barkley Rosser | Professor of Economics at James Madison University in Harrisonburg, Virginia
A government might indeed "recognize" that someone has already achieved some degree of control over a piece of territory and seek to ratify or legitimize that control by granting legal rights to control it. But a government might just as well grant that control, without the individual in question having achieved any prior degree of control over it on his own.
ReplyDeleteAnd note that a government cannot grant any degree of control over territory that the government itself does not already have the power to enforce. So the government must already have achieved some degree of control over the territory.
Lock's metaphor of "labor mixing" is tendentious. People can alter the shape of some terrain through their labor, and build things or grow things on it. But their labor hasn't in any literal sense been mixed with the land.
The very notion of fee simple land ownership "fee comes from the word fief -- as in fuedal" implies that the sovereign holds a superior radical title to the land and to all the real wealth that you produce from the land. The sovereign simply grants you an ephemeral title to the land so that you may produce and pay income, sales and property taxes with which the sovereign may provision itself. The notion most people have of "owning" their land today is a modern construct of the imagination that has no basis in the common law tradition of the United States or European nations who conquered the land and removed the natives from it. Most of the anti-social behavior of progressive and far-right extremists show a deep lack of understanding of the nature of government's relationship to owners of property. Additionally Economics doesn't really view land as any different from any other capital which is wrong because land is special in a variety of ways from all other capital.
ReplyDelete"The sovereign simply grants you an ephemeral title to the land"
ReplyDeleteWho is the sovereign in the US?
The government is the sovereign. If you doubt their superior title, don't pay any of your taxes, A man with a gun shows up eventually to take it back. Try and refuse to allow them to have the property back when they need it back to do a public work, A man with a gun shows up to take it back. Try and stop them from telling you how you may or may not use "your property"...man gun take. lol.
ReplyDeleteYour right to use the government's property is based solely on your ability to produce and pay taxes.
Ryan,
ReplyDelete"The government is the sovereign"
I'm not sure if that's the case. I think the sovereign may be 'the people of the United States'.
The Supreme Law of the United States is 'ordained' and 'established' by 'the people of the United States':
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America"
"Your right to use the government's property"
The Constitution doesn't describe 'public property' or 'state property' as belonging to the government of the United States in particular. It describes it as belonging to the United States. There is a distinction made in the text between "the government of the United States" or "the Congress of the United States", and "the United States".
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."
(Article 4, section 3)
Very good point. I hadn't ever thought about it from that angle. Public purpose, public owned land.
ReplyDelete