What Is Property? Chapter 2, part 2 notes

I had some unexpected delays of a better sort yesterday, including two rather random encounters with one of my best friends from high school (in California, not Oregon, where I am now), who I haven’t seen in about 20 years. A familiar voice in a coffee shop turned out to be just who it sounded like. And then the voice again, from a parking lot I was walking by, hours later, on my way home from the bookstore. Good stuff.

Anyway, we left off at page 54, at the start of section 2, on “Occupation, as the Title to Property.” The section begins with a definition of the “right of occupation:”

“The right of occupation, or of the first occupant, is that which results from the actual, physical, real possession of a thing. I occupy a piece of land; the presumption is, that I am the proprietor, until the contrary is proved. We know that originally such a right cannot be legitimate unless it is reciprocal; the jurists say as much.”

Proudhon goes immediately from this definition to the analogy of Cicero:

“Cicero compares the earth to a vast theatre:. . . The theatre, says Cicero, is common to all; nevertheless, the place that each one occupies is called his own; that is, it is a place possessed, not a place appropriated. This comparison annihilates property; moreover, it implies equality. Can I, in a theatre, occupy at the same time one place in the pit, another in the boxes, and a third in the gallery?”

Perhaps there is something in the Latin motto that I am missing. (“Quemadmodum theatrum cum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occuparit.”) But as Proudhon develops the metaphor of the theatre, it is appears that the “right of occupation” is essentially a right to occupy some place, not necessarily the same place each time. The right is a matter of need, of equal access to resources. There are some confusing aspects of Proudhon’s description: when he talks about how the occupier may “beautify and adorn” their place, there is a suggestion of labor-mixing that is perhaps a bit at odds with the picture of simple occupation. But for the most part, Proudhon seems to be using Cicero to paint a picture of possession free from pretty much any of the sorts of “property” we have proposed, let alone the simple property which concerns him. Dugald Stewart used the same passage, in “The Philosophy of the Active and Moral Powers of Man,” to illustrate roughly the same distinction:

“In order to think with accuracy on this subject, it is necessary to distinguish carefully the complete right of property which is founded on labor, from the transient right of possession which is acquired by mere priority of occupancy. Thus, before the appropriation of land, if any individual had occupied a particular spot for repose or shade, it would have been unjust to deprive him of the possession of it. This, however, was only a transient right. The spot of ground would again become common the moment the occupier had left it; that is, the right of possession would remain no longer than the act of possession. Cicero illustrates this happily by the similitude of a theatre. ‘Quemadmodum theatrum, cum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occuparit.'”

In Stewart, the simple right of occupation is quite clearly transient, and there is no question of property. If this were the only right, than perhaps you could lose your apartment by going out to get groceries, as long as there was a place left for you to prepare dinner and go to sleep. We can think of much worse situations than one governed by a truly mutual, equal right of occupation, and perhaps we live in the midst of one. In any event, if the “right of possession,” which remains a little elusive, is essentially the “right of occupation,” then the problem of going from possession as fact to possession as right may not be as great as I’ve suggested: if there is a fact, a need, which pretty obviously suggests a right, the need to occupy some space or other is probably right up there in the running. Still, this right to occupy is obviously not any of the things we call “occupancy and use,” which seems to imply a property or near-property relation of some limited duration.

It’s not hard to see how this right of occupation can only be an equal right. As the location, etc., of the seats in the theatre don’t seem to modify the situation at all, we have a clear case of equal rights to one element in a set of things (seats) which may be rather unequal in other respects. Likewise, the equal need of each for “a seat” doesn’t mean everyone will take up the same space. There is no reason to believe that equality necessarily involves procrustean solutions, even when one is speaking, as Grotius was (p. 55) of an “original communism” in which common property predominated. Certainly, this was not Proudhon’s notion of equality, however much (fairly or unfairly) he sometimes attributed the notion to “communists.” Anyway, Proudhon accepts for the moment Grotius’ suggestion that humans began in a state of equality, but it raises questions:

“We never can conceive how the equality of conditions, having once existed, could afterwards have passed away. What was the cause of such degeneration? The instincts of the animals are unchangeable, as well as the differences of species; to suppose original equality in human society is to admit by implication that the present inequality is a degeneration from the nature of this society, — a thing which the defenders of property cannot explain. But I infer therefrom that, if Providence placed the first human beings in a condition of equality, it was an indication of its desires, a model that it wished them to realize in other forms; just as the religious sentiment, which it planted in their hearts, has developed and manifested itself in various ways. Man has but one nature, constant and unalterable: he pursues it through instinct, he wanders from it through reflection, he returns to it through judgment; who shall say that we are not returning now? According to Grotius, man has abandoned equality; according to me, he will yet return to it.”

We see here an early form of Proudhon’s doctrine of progress. As harsh a critic as he could be of earlier social forms, he looks in them for evidence of a general trend, mostly towards greater equality and justice. Notice that “wandering…through reflection” is an important part of the process here. Words like “degeneration” have to be understood in this light. To give Bakunin’s bon mot a Fourierist twist, we might say that “the retrograde is also a progressive element” (or something like that.)

On pages 56-58, Proudhon turns the question of what one has a right to occupy into a problem of division, literally, dividing the total amount of property by the number of people. Or, rather, he attributes this turn to Reid, and then makes some criticisms that could, I think, have been clearer. In pressing on to criticize Reid for not overtly championing the equal right of occupancy, Proudhon passes rather quickly over the issue of the rights to the “necessary means of life,” which is not a trivial concern for modern libertarians. He seems, however, to agree that there is a right of equal access to those resources as well, while he seems (if I am getting the nuances right) to reserve some offhand skepticism about a simple equation of the nature and character of those means. There are some potentially loose ends here that are interesting, I think.

A good deal of Proudhon’s treatment of Destutt-Tracy (58-63) goes back to the issue of semantic and logical sloppiness. The fact that I have arms and legs, that they are “my arms and my legs,” doesn’t really make me a “proprietor,” but Destutt-Tracy was of the group that argued against class distinctions precisely on the ground that possessing properties (or limbs) was pretty much like possessing property. I think much self-ownership theory reads the character of (chattel) property back onto our properties, but generally not in so laughable/offensive a manner.

On the other hand, as I’ve suggested, I read the Lockean property model as exploiting a similar movement across categories, but starting from our properties (that which is most essentially proper to us) and moving out to identify as “property” those things which come into intimate relations with us, become mixed up with our selves. Proudhon, who was very interested in composite beings, in levels and layers of individuality, never seems to have pursued this aspect of the “moi,” but I’m not sure I’m too off from the general trend of his thought in my own explorations of the issue.

Back to Proudhon: on pages 59-60, we are treated to his reading of Destutt-Tracy on the origins of contract-based property conventions, and the “state of estrangement” which proceeded them. Readers of Benjamin R. Tucker will appreciate this account of how what we might call the “equal right of might” led naturally to an improved approximation of equality based in contract. Kevin and I have both long argued that thoroughgoing egoism might well lead to a kind of egalitarianism in the realm of rights, citing Tucker as a fellow in this regard. For Proudhon, the argument is really that all roads lead to liberty, and all coherent rights seem to radiate from it.

And that turns out to be enough to digest in one post, so I’ll finish Chapter 2 with a third post tomorrow.


About Shawn P. Wilbur 2703 Articles
Independent scholar, translator and archivist.