T8 – Down With Constantine!

Property Is (Nearly) Theft

Download the complete article as a PDF.

T8 intro – audio transcript.

A Greek Tragedy

In the mid 1990s the former King of Greece, his sister Irene and his aunt Princess Ekaterini hit upon a neat ruse.

The family had been on the Greek throne on and off since 1864 and by the time Constantinos ascended to the throne in 1964 its estates were vast.  But soon after this, disaster struck in the form of the military dictatorship which seized power in 1967 and which a few years later ordered the seizure of all Royal property.  (Though compensation was offered on that occasion it was never accepted by the family.)  With the return of democracy to Greece in 1974, there was some discussion and a few proposals before the state finally legislated to confirm that all the property now definitively belonged to the state.

In the old days a Royal Household would have taken this kind of thing on the chin.  Can we fight back with a loyal army or use some foreign mercenaries to force the issue in our favour?  If not, then I guess it’s a future of expatriate grouching and global play-making: not quite the luxury our parents enjoyed, but not exactly a firing squad either.

But Constantinos, Irene and Ekaterini had another string to their bow: they were victims of a human rights abuse!  And the European Convention of Human Rights said so.

With top lawyers from Greece and the UK recruited, they launched their case.  The old European Commission on Human Rights declared the application admissible on 21 April 1998 and on 23 November 2000 the Court itself agreed there had been a breach of their right to property, a right guaranteed by a Protocol to the European Convention on Human Rights (on which more later).   What particularly influenced the court was the lack of any compensation for the one-time first family.  You can see the whole thing at the Bailii web site – and the later ruling concerned with the details of the compensation now ordered by the Court in ‘just satisfaction’ for the wrong done to these ‘victims’ of ‘human rights abuse’ – over 13 million Euros directly and 500,000 Euro is costs and expenses (all those terrific lawyers).

Now this was much less than the family had wanted – but still why pay anything at all?

Is The Right To Property A ‘Human’ Right?

The French Declaration of the Rights of Man certainly thought so, with article 2 declaring it one of the ‘natural and imprescriptible’ rights that we all enjoy in view of our humanity and to the preservation of which all ‘political association’ must be dedicated.  The American Declaration of Independence was more coy but when the founders of the American Republic got round to their written constitution the protection of private property had made it to the forefront of their minds.

In the shape that human rights took in the Enlightenment period, we can be in no doubt that the right to property was part and parcel of what the term was thought to include, the individual was not only an individual but a ‘possessive individual’ (as C B Macpherson once so famously put it) to boot.

But we should be careful about taking this tradition and deducing from it anything general about our subject. Earlier and later versions of human rights have been very hostile to it.

Christian Perspectives

It is remarkable how conflicted the Catholic Church was about property even at the height of its power.  Roger Ruston’s book on Human Rights and the Image of God is fascinating on this.  The great intellectual guru of the Church Thomas Aquinas was very hostile to accumulation, viewing us as having nothing more than a right of self-preservation.  Indeed Aquinas was not even sure that there was anything so very wrong about taking from the rich – their duty was to dispense not to horde.

Taking their cue from Aquinas – but also drawing from the ancient traditions of the Church of Christ – the Christian tradition has developed a strong line against unnecessary acquisition, reflected in many church encyclicals:

… the acquisition of worldly goods can lead men to greed, to the unrelenting desire for more, to the pursuit of greater personal power…. Neither individuals nor nations should regard the possession of more and more goods as the ultimate objective. Populorum Progressio

I am sure that other religious traditions share a similar perspective on the person, one that puts the personal growth of all over the disproportionate material aggrandisement of the few.  Perhaps readers can point me in the right direction on this?

The Socialist Critique

And then, with Christianity losing its grip on Europe and Enlightenment confidence a couple of generations old, came Marx.  It was as though the world of ideas suddenly noticed power.  Rights of property began to seem out-of-date, sociologically illiterate even.  Marx led the charge,

the right of a man to property is ‘the right to enjoy his possessions and dispose of the same arbitrarily, without regard for other men, independently from society, the right of selfishness’

The communist alternative to capitalism was inherently hostile to the right to property, a right that Marx and his many followers since have viewed as a mere creature of capital.

It was in the 19th century that human rights made its great migration from radical idea to tool of conservatism, not the destroyer but rather the protector of privilege: see my  first common track on some of this history.  The apparently unbreakable connection between rights and property underpinned this perception.

Judges Make Things Worse

Judges were quick to see the conservative potential of property rights as a means of resisting the democratic and emancipatory advances by which they seemed at this time increasingly to be surrounded.

  • The disastrous Dred Scott case of 1857 in which the US Supreme Court held that slaves could never be citizens was a property case, the property in question being the human beings who had been enslaved by their white owners.
  • In seeking to resist the emergence of the Labour Party in Britain in the first decade of the 20th century, a leading law lord, Lord Shaw of Dunfermline, used a case in Britain’s highest court, Amalgamated Society of Railway Servants v Osborne, to develop a theory about democracy being subsidiary to more natural rights, with Parliament being the mere instrument of the rich, a body whose rationale for existence was that it operated ‘as a fence to their properties’.
  • When President Roosevelt developed his New Deal in the US he was nearly destroyed by the reaction of a deeply conservative Supreme Court which cloaked its political antagonism to progressive state action in the guise of property rights: a sequence of cases that nowadays go under the heading of Lochnerism, after an early version of what was to follow, decided by the US Supreme Court some thirty years before.
  • To the extent that Constitutions have sought to place property ownership above politics, in the form of a human or constitutional right, then they have invariably handed the rich a device with which to resist movement towards an equal society: see the Irish cases on rent control for example.

Resisting Temptation

Since the right to property is a foreign growth on the subject, playing no part in its emergence and being even less relevant today – a time when, as we have seen, our subject is increasingly taking on a progressive shape as a platform for the creation of a fair and equal society – should we now simply deny its place as a human right?

Has the time come to strike the right to property completely from the arsenal of rights?

The answer is an unequivocal no.

Of course it is wrong in human rights terms to be relentlessly accumulative in the acquisition of material things, particularly when the consequence is less for others and so an increased disparity between the rich and the poor.

But the days are over when we can blithely assume that the tendency towards ownership is a creature of capitalist indoctrination, that left to our own devices we would be happily immune to this temptation to material aggrandisement.

Either this is not true, and there is within us a natural inclination to exclusive possession, one that it is part of what makes us human and that allows us to flourish as persons.

Or even if this property instinct is not natural to us, then it remains (sadly) the case that we have demonstrated no capacity to devise a system of common ownership which does not leave itself vulnerable to abuse, to the grabbing of disproportionate shares by those who have fought their way to the top of the system, however ‘communist’ or ‘egalitarian’ it might in theory happen to be.

The facts of history, once we look them in the face with an open mind, mock the simplicities of Aquinas, just as they do the idealistic assumptions of Marx.

All property is not theft – the much maligned Proudhon (originator of this great revolutionary phrase) knew that well enough.  The point is control, regulation and – if necessary – state ownership. The key is power, the control of greed, not of ownership as such.

And The European Convention?

The actual Convention itself does pretty well on property.  First it does not include it at all.  Then, when it does eventually sneak in as the Protocol mentioned earlier, it does so in a very apologetic fashion, speaking of ‘the peaceful enjoyment of [a person’s] possessions’ being however subject to deprivation where this is ‘in the public interest and subject to the conditions provided for by law and by the general principles of international law’.

And none of this is in any way to impair ‘the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’

Overall not so bad: the right to property not as a necessary evil on the way to a human rights Nirvana (there can be no such place for the human without the chance to call things their own) – rather the right to property as a highly circumscribed chance (where the common good allows it) to enjoy stuff that you possess.

So how did we get from this to Constantinos?

The European Court has reasoned itself into a corner by insisting that compensation should invariably be given where property is taken.  But this is nowhere explicitly set out in the Convention itself and should not have been deduced from its words.

No country can afford to buy off the unfairly rich – such an obligation is inherently self-defeating of any determined effort to reduce inequality.  There must be times when it is right to proceed with brutal power to seize the vast accumulations of the rich – not to subvert their rights of ownership but rather to destroy their privilege of iniquitous accumulation.

The European Court judges knew this in their hearts and gave Constantinos much less than he and his family (and their lawyers!) wanted.  In an ideal human rights world they would have received nothing at all, save enough to live as ordinary citizens in the state they used not only to call home but also practically to own.

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25 Responses to T8 – Down With Constantine!

  1. Paul Bernal says:

    Don’t forget that the ex-King of Romania managed to pressurise his government to paying him 30 million Euros for the same kind of thing – the Romanian government knew that he could take them to the European Court and would probably win.

    My question, which I’m not sure if you’ve really answered (or even if it can really be answered), is how we can find a better balance over property. Right now, the balance seems very firmly on the side of what might be described as the property-owners, both within states and between states (and indeed within families and communities). Some kind of shift in balance would seem both desirable and right. How do we get there? It’s not just about stopping former monarchs, it’s about countering the massive differences in wealth levels that not only pervade our society but seem to be widening all the time.

    In politics, at least in this country, there seems to have been an almost hidden shift of assumptions in the wrong direction. When we look to deal with our deficit, the only question really being asked or discussed is ‘where can we cut expenditure’ rather than ‘how can we raise more money’, because the latter would/could/should involve taxing the rich. With the changes in University funding, the idea that taxation could/should fund something that is for the ‘common good’ seems to have disappeared, and all we’re looking at is a simple equation of individual cost vs individual benefit. The idea of depriving some people of some of their property, in order to help society, seems to be almost sacrilegious in the current climate.

    To me, this is one of the hardest issues of all – and one that we have to grasp one way or another. I don’t know how yet, but the first point, surely, is to start talking about it. We don’t do enough of it.

  2. Zoe Fiander says:

    ‘Property instinct’ – brings to mind ‘Human Universals’ by an anthropologist, Donald Brown – in that book he suggested that property was universal.

    Generally, I support the idea of rights being described in general and fairly abstract language (for the reasons that others argued in last week’s track about the HRA) but property is an exception, I think, if it’s even a right at all. Perhaps I can’t stop myself slipping into lawyer-think but it seems the more prone a right is to abuse, the more it requires qualification. I would argue the same in relation to the right of privacy and the right of freedom of expression (not so in relation to something like the right to freedom from torture, as it’s impossible to use this right in order to frustrate someone else’s, irrespective of what certain sections of the press might say).

    I’m not so sure that Protocol 1 does do a good job at the ‘highly circumscribed’ part, as Conor puts it, but I am at a loss how the right to property could be better framed without removing the powerful incentive exclusive possession creates to do things which are socially and economically useful.

  3. Richard Buck says:

    I was brought up on the idea that “life, liberty and property” are the “fundamental rights.” Today I am troubled with “property” being included with “life and liberty.” In traditional societies, communal ownership or the absence of any idea of property ownership is often the case. In Samoa, the village chief owns all the property and then assigns it to families in accordance with custom, need or his/her caprice. What is lost in individual prerogative is compensated for in social support In the modern world, I am not prepared to call a socialist system illegitimate because it does not permit private property ownership. It is true that property ownership may allow the individual to be somewhat independent of the collective. In that regard property is a means of protecting the more fundamental rights of life and liberty. Although it is not always desirable to make a means-ends distinction, I think is is appropriate to call private property a means. Jefferson substituted “the pursuit of happiness” for “property” in the Declaration of Independence. I think it was a good choice. Aristotle named happiness as the end that all humans seek. Possibly we should look at human rights in the same way. The number of rights enumerated would be small and they would be agreed-upon human ends. Other things often called human rights would be merely means, and we could agree that there would differences between societies in the choice of means.

  4. Alex says:

    This may be a hugely unfashionable and unpopular idea, but I tend to think that true equality and dignity stems from an equality of opportunity to accumulate education, property, happiness etc. To make this happen we shouldn’t be hacking away at those lucky enough to be born into these things, but focussing on providing those who haven’t been with viable opportunities to do just as well, if not better than those who have.

    Unfortunately the world isn’t a meritocracy however, and I’m aware that what I consider to be an ideal type (in the Weberian sense) isn’t representative of our current situation; who you know is still just as important as what; people are still discriminated from certain roles in society due to backgrounds not of their choosing. Therefore government needs to be ensuring that our rights aren’t diminished or increased by our circumstances, but by no means does that call for a radicalisation of our concept of property, but rather a radical re-education of the people when it comes to choosing the best person for the job, university place or role, regardless of previous financial or societal position.

    • Paul Bernal says:

      The thing about equality of opportunity is that it is very often almost entirely illusionary – there has to be at least some equality of outcome as well. I don’t want to pre-empt some of the other posters, but as just one example we men can blather on endlessly about sexual equality of opportunity, but the reality is that in practice though theoretically the ‘barriers’ to equality between men and women may be falling, the reality is that there is still a vast, vast difference in outcomes.

      In practice, the way that property works in the real world presents enormous barriers and produces enormous disadvantages to those ‘without’. Until those disadvantages are addressed in a real way, it seems hard to justify our current system – at least with a straight face.

      • Alex says:

        I realise that my suggestion isn’t one which provides us with a perfect situation, but similarly neither would the removal of property rights. Can you imagine what would happen if the government was to come out one day and say that private property was no longer in existence after millennia of it being a key part of our politics and assessment of self-worth?

        All humans (Zoe points out this universality with her reference to Brown) rely on wealth and property as a system of demarcation for social structures. Unless we’re suggesting evolving into some from of permanent Turner-esque Communitas (which he recognises is only truly viable in a liminal stage, rather than long-term) I don’t think that breaking down of social structures and hierarchies which comes with unequal property accumulation will ever appeal to our basic human instinct. In short, people just won’t go for it; especially those with. In practical terms, I think that encouraging more meritocracy is the best we can do within the current political system.

        You’re not going to change society’s approach to something which is a vital part of our day-to-day lives without a lot of upheaval and pain; maybe it’s better to create a liminal phase within society of attempting as true a meritocracy as is possible before ensuring people’s rights through massive state interference, where many would consider it an intrusion rather than a help.

        • Richard Buck says:

          I agree that massive state involvement to insure meritocracy is not the first step. In fact, the bigger role the state plays, the more likely it will become a source of abuse in regard to merit. However, there is one fundamental that must be done by the state for meritocracy to have a chance at all: free primary and secondary education. Beyond that there must be a source of financial support for higher education for those that quality by merit. Ideally there would be multiple sources of support. It should not be entirely governmental.

          • Alex says:

            I couldn’t agree more Richard; those or more or less my views entirely. I don’t think an increase in higher education fees is necessarily that bad a thing provided there is the financial support in place to ensure that those who are capable of excelling at university, but not capable of paying to do so, are provided for. If they’re not we all lose out.

        • Paul Bernal says:

          I’m certainly not suggesting an abandonment of the idea of property – and neither is Conor – but rather a rebalancing of rights, so that the right to property is given considerably less status in comparison to other, more ‘human’ rights. My main issue is that at the moment it seems as though property rights aren’t really questioned at all: they seem to be inviolable and inalienable, when to me they should be highly conditional.

          • Alex says:

            ‘they seem to be inviolable and inalienable, when to me they should be highly conditional’

            Whereas I believe that the right to property is sacrosanct, and is indeed a basic and inviolable human right. As soon as we give any government a remit to claim otherwise I’d be taking a good hard look at what sort of precedent we’d be setting for government involvement in our lives in general. As somebody who tends to crave minimal government in general, this is anathema.

            I realise that my previous post was a little too hyperbolic; I know that the suggestion isn’t that we should be abandoning property altogether, but I suspect that talking about amending the relative importance of property rights would be taken as such by a large proportion of the public.

          • Paul Bernal says:

            So, if you believe that property rights are sacrosanct, does that mean you would have fully supported the King of Greece in his claim?

            The thing is, governments can and do interfere with the right of property – that’s what taxation is – the question is not whether they do, but how, when, and to what degree. There, too, I suspect we disagree fairly fundamentally….

    • Zoe Fiander says:

      That would be well and good if the reset button was pressed after every generation, but whenever you have people starting from different points the result will inevitably be inequality of opportunity *and* inequality of outcome. But then the world isn’t a very equal place (even meritocracy isn’t ‘fair’ because merit is often the result of luck).

      Still, encouraging meritocracy is probably the best thing we have (not perfect, but what’s better?) . I think compassionate society does recognise that there is an element of luck involved, and so it steps in in situations where the consequence of somebody’s luck/merit is to remove the potential for other people to realise their own. But this is very far from equality of opportunity. And it’s not easy to apply to property, either.

      • Alex says:

        I do agree with what you’re saying; I think that if we’re going to be politically and socially realistic we have to accept that sometimes incremental change, which doesn’t seem to provide us with the vast levelling of the playing field that we crave, is the best option available. Yes, meritocracy is far from perfect, but nothing will be perfect in practice!

        On a side note:

        I can’t help but think, given Brown’s universals of economic inequality and differential valuations, that if property wasn’t there to help us rank ourselves relative to others, we’d find some other arbitrary way to create a power hierarchy, at which point the inequalities of opportunity and power would start to creep back into society. Just a thought.

        • Zoe Fiander says:

          On these universals, you have a point. On a tangent, a critique of Rawls I read fairly recently (can’t remember who) said that egalitarian theories are flawed because they don’t take account of people’s need to blame. Interesting idea.

          I wouldn’t disagree with anything you’ve written in this thread, but I think where we disagree is on seeing property as a means or an end in itself. It’s possible to see ‘the exclusive possession of property’ as a universal end – something which is part of our humanity – or as a means to an end which, in the society we live in, happens to be universal (perhaps). Here property’s only answering a human need, it’s not a human need in itself. I definitely take the second view, so I’m more willing for property to be ‘interfered’ with. However, it’s still important to recognise that property does play an important role in society, and this should be reflected in human rights (which are inevitably concerned with human needs).

          I also think a distinction could be made between real property (land) and possessions – the former is much more contentious because it is finite, unique and exclusive.

          • Paul Bernal says:

            I like the distinction between ‘a human need’ and ‘answering a human need’. Societies can (and have) existed and functioned without a concept of private property as extensive and all-encompassing as that in existence today….

  5. Christina says:

    I couldn’t work out how to add this to track 2:

    Conor says:
    “And if they win, what kind of political life will they lead – those schooled in minority factional violence rarely make effective politicians in peacetime, the anger that made them good subversives makes them bad leaders. (Perhaps readers can offer some examples?)”

    I believe that Albie Sachs is an example. although not a politician, he was finally after years in solitary and losing an eye and a leg, to be come a high judge and law maker. and he refused to legislate for Capital Punishment, as he believed that this would remove his humanity, after all he’s been through. He certainly influences political decisions through law. I would hold him as an inspiration of rights defender. “Justice Sachs is also recognized for the development of the differentiation between constitutional rights in three different degrees or generations of rights.”(wikipaedia).

  6. Federico Burlon says:

    Right to Property
    In light of the fact that property is considered as a human right, it would be important to look at what political philosophy has to say about it. Given that human rights are a product of liberalism I would like briefly to look at two particular philosophers.
    The first philosopher is John Locke. Writing in the seventeenth century, Locke argued that the state of nature is not a state of license because, being all men “the Workmanship of one Omnipotent [and] his Property,” they shall not harm one another. Thus in Locke’s view, natural rights and natural law derive from the assumption that God gave human beings a life that they themselves own. Thus, all rights, including the right to property, derive from our status as creatures of God. In other words, the right to property is there to protect what Locke identified as human nature.
    In order to consider the extent to which a right to property can be developed, I would like briefly to look at the argument put forward by Robert Nozick. Among the different tones of liberalism, we find Nozick at the ‘libertarian’ extreme. In contrast with liberal egalitarians, libertarians believe that the free market is inherently just. Therefore, they regard taxation with the purpose of redistribution of wealth as a violation of fundamental human rights. In a nutshell, Nozick argues that people have liberty to do whatever they like with what they own. He indicates that people may own their selves, the natural world, and the products that result from the application of their labor to the natural world. There are three ways in which people come to own the world: initial acquisition, voluntary transfer, and rectification. In other words, once upon a time the world was un-owned and after its initial habitants took possession of it, they transfer their holdings to successive generations. Thus, in the words of Will Kymlica “if we assume that everyone is entitled to the goods they currently posses […] then a just distribution is simply whatever distribution results from people’s free exchanges.”
    While Nozick’s theory may sound odd to human rights advocates, it does strike a chord with those in the far right because it appeals to liberty and favors a minimal state. However, the conceptualization of the right to property that Nozick puts forward raises a number of questions. For instance, what happens to individuals born in poor families who own nothing and thus have nothing to offer in exchange for health care, food, education or shelter? How can the current distribution of natural resources be justified in light of the fact that much of it was taken away from native tribes in the course of European colonial adventures? Nozick would argue that property that property that was illegally acquired shall be returned to its initial owners through rectification. But how far should rectification go?
    I agree with Prof. Gearty that the right to property should not be jettisoned. However, in light of the brief discussion of Nozick’s theory above, I believe that the right to property should be subject to a number of qualifications. Limits on the right to property are necessary because an absolute right to property is ultimately detrimental to human beings, to the individual. An unfettered right to property fails to take into account differences in endowment and individuals’ natural disadvantages. In addition, it offers practical and effective protection only to those who own something. This is problematic because property, in a Nozickean sense, plays a paramount role in the development of individual identity and autonomy. The exchange of property allows individuals to obtain education, health care, food, shelter and other basic social needs. For this reason, it is important to limit the right to property in order to provide some form of redistribution that addresses and alleviates the situation of naturally disadvantaged people.

    • Richard Buck says:

      The need to circumscribe property rights in the general interest of the community leads me to suggest that property should not be considered a right. Property is certainly important in society to the extent it can be exchanged to satisfy basic human needs, which can more legitimately considered rights. In this regard, property is not an end for human beings, but a means. Perhaps potential rights closer to being required for human survival and flourishing should be the focus of our attention. For instance, the confiscation of a bank account would be a violation of human rights if that bank account were required for a person to put food on the table. The confiscation of bank accounts in excess of what could be reasonably needed for human survival and flourishing would not be a human rights issue in itself.

      • Paul Bernal says:

        I do agree, but isn’t there a big question of what ‘flourishing’ means in that context?

        • Richard Buck says:

          Paul, you are correct in challenging the use of that term.
          I hesitated before using “flourishing”, but clearly human rights should provide for more than just survival. You could write a treatise on what human flourishing would be. In my mind it would be something like being permitted to pursue one’s full human potential. This potential should not include having power over other human beings or attaining wealth to the detriment of others. This pursuit of potential would have to happen within the norms of a society and the laws of a state. Then the question becomes what society and the state should not be allowed to restrict or should be required to provide. These rights should be ones that can be asserted unconditionally, unlike property rights which of necessity must be restricted.

          • Paul Bernal says:

            I wasn’t really disagreeing with you, just raising what is for me a crucial issue, and one which you’ve begun answering…

            …but I think it’s such a huge issue that Conor’s likely to need to return to again and again. Flourishing is a great word, and contains a lot of what really matters to me in this field, but it also gives room for those who might wish to manipulate or ‘misuse’ the concept of human rights.

  7. Is private property a human right? At one level this has to be a huge philosophical question about the relationship between human beings and the world in which we reside – what, for example, are we really saying when we say that we own our pet dog, a fellow sentient being? I would love to explore the deep philosophical waters here, but suspect that this is not the place (and for me it is not the time, in the midst of a busy week, like everyone else, I’m sure!!)

    What I would say though is this: the contemporary international human rights regime is one which is born out of a liberal political philosophy and history in which notions of property are central. Moreover, the present global environment is one in which an economic system based on private property rights is triumphant – not withstanding its current bout of indigestion (which, I fear, is all it is, for better or worse: this crisis is anything but the end of the ascendancy of neo-liberal capitalism.)

    Thus, we find ourselves in a situation where, in order to secure a range of the rights and goods proposed by the human rights regime, private property rights are central to the mix – in fact the whole system cannot seriously be thought without them. If you accept (which I do) that there are serious costs associated with the current global order, it puts us in an invidious position: the advancement of rights gains requires the promotion of economic mechanisms which also undermine certain rights gains.

    Thus, people need certain kinds and levels of private property in order to have certain kinds of freedom, securities and powers – and yet the economic order which provides for the private property rights also undermines certain kinds of freedoms, securities and powers – and they may be the sames ones!

    I think the current debate over education fees here in the UK is a good example of this dynamic at work.

    Pheng Cheah gave an interesting talk about this at LSE last night (Pheng Cheah: ‘The Physico-Material Bases of Cosmopolitanism’ Dept of Sociology sponsered, should be listed at LSE events on the web). I fundamentally disagree with where he ends up, but he really clearly explicated the ways in which we get drawn in to a system which both supports and compromises us. His vocabulary is that of biopolitics and governmentality, and in the end I don’t think he vindicates the grounds for the critique he wishes to advance.

  8. Favio Farinella says:

    The events that took place in Argentina ten years ago led us (lawyers) to consider if the right to property really was an inherent right of every individual.
    The facts were that the government enacted legislation that as a direct consequence, forbade depositors to draw their savings -in foreign currency- from their bank accounts. Then the government decided a devaluation that ranged between 300/400 % and wanted to pay back the deposits in domestic currency in a rate of 1:1 basis. Since the majority of savings were in American dollars, depositors were about to lose the biggest part of the savings of their whole life.

    The legal answer was to start judicial proceedings to guarantee the right to property against the governmental violation that was founded in reasons of public interest (an economic emergency similar to the current Irish financial crisis).
    At a first glance, rights being confronted seemed to be the right to individual property on the one side and the general interest of the economy on the other side. The main point here was that lawyers needed a strong argument in order to obtain a precautionary measure from the judiciary ordering banks to return the foreign currency to their legitimate owners before the state devalued and converted foreign currency into domestic currency in a 1 to 1 basis.
    Different arguments were produced: some alleged a medical emergency (a surgery or an expensive treatment); some others provided arguments related to other basic needs such as adequate food, clothing and housing. These suits were successful. Judges did not doubt: all those were fundamental human rights and could not be suspended by an emergency economic situation.

    But those lawyers that decided to directly claim for the violation of the right to property -which was the first right to be violated indeed-, found that in most of the cases, their petitions were rejected under the argument that the general interest of the economy should prevail if confronted with the “selfish” right of a minority of depositors who were rich enough to save. Consequently, lawyers doubted before raising the ‘breach of the right to property argument’ in order to obtain an interim measure and better replaced it by a more ‘human rights’ argument, such as rights to health, medical care and the like.

    This situation lead us to think about the nature of money – savings. Do they deserve protection on their own or just because of the goods we have access to through their possession?. What really underpins the situation is the fact that money (in the form of savings or any other) is the key to gain access to a range of basic goods whose enjoyment can be described as social justice.

    As a first conclusion, I think that the right to property helps to develop our capacities (in order to acquire it) and if considered a means, it is useful to satisfy our needs.
    The abuse of the right to property that we may call ‘the right to -greedy, selfish- accumulation’, it is a deviation that must be combated. It stands against the general interest since the accumulation of property by an elite is in direct relation to the impoverishment of the whole, considering the scarcity of resources.

    As a second idea, selfishness is not an attribute of capitalism, but a constituent element of human nature. Thus, it constitutes a possible deviation of any political system. There is a lot of talking about individual selfishness, but the greediness of any elite in power under communist regimes is also true.

    As a third idea, the right to property is maybe the epitome of western values, the most cherished value according to a capitalist approach to democracy. It is necessary to acknowledge that in the end, a democratic legal system translates the breach of any right (even the most sacred) into the form of a monetary compensation.
    Any human right is in its breach, a right to monetary compensation.

    Fourth and last, in a capitalist democracy (in this order since there are more capitalist states than real democracies) the regulated exercise of property rights contributes to more equality. Having a minimum periodical earning (through a decent job or government help) every inhabitant becomes a real citizen because she/he is free from want.

    In brief, even if we does not consider the right to property a human right, in western style societies, it precedes them all. So I think the point is greediness, not individual property. The state shall control that trend to selfishness regulating and monitoring the acquisition and utilization of individual property, that must be subject to and understood in the context of general interest.

  9. Joe Hoover says:

    It seems a number of issues are conflated when talking about a right to property: possessions, land, resources, means of production, money, welfare and equal opportunity – but I think with out disaggregating these ideas a bit, it’s hard to appreciate the relationship between property rights and human rights.

    As I’ve implied elsewhere about human rights broadly, I think we can defend a right to property as a human right, but that any appeal to universals or human nature will not overcome the controversies involved. Also, human rights historically have included notions of property rights – but that historic relationship has always been one of tension. I’d suggest Neil Stammers book “Human Rights and Social Movements” as a good record of how the liberal/bourgeois notion of property rights was contested in even the earliest rights movements.

    Two dimensions of property are key here, I think… (1) what property do we have a right to; and (2) on what basis do we have that right.

    It’s very easy to defend a human right to possessions/wealth adequate to provide for a comfortable and dignified life. It’s much harder to justify a right to unlimited wealth. I think Mutua’s line that Bill Gates should be seen as a human rights violator is thought provoking.

    “Fundamentally, the human rights corpus has no philosophy on money and whether, for
    example, the creation of a Bill Gates would itself be a violation of human rights norms. In political society, an absolute dictator would be impermissible under human rights norms and contemporary understandings of political democracy. Analogously, Bill Gates is the market equivalent of the political dictator, although that is not how he is understood in a political democracy or by the human rights corpus. In fact, Gates is a celebrated and venerated individual, the pinnacle of success in society. Yet, the existence of his economic empire, which he personally holds, is a radical perversion of any egalitarian or equitable notion of human dignity.”

    It’s more difficult still to justify an individual human right to land, resources or the means of production as such, and indefensible without serious qualification and limitation. We should separate out a right to welfare, and the contribution that a capitalist system of private ownership may have upon that welfare, from the notion of a fundamental right to property based in some metaphysical inheritance or universal drive to possess and own. In the end, I think determining what property we might have a right to as a matter of human rights depends upon what it is about the relationship between being human and holding property.

    Modern liberal rights theories were clearly intended to justify the possession of land and resources as an absolute and natural legal entitlement secured through a constitution in opposition to political/social forces that based their ownership on divine and hereditary rights and power; but workers movements and socialist/communist ideas in the 19th century certainly put these stories of human and property under real strain.

    An aside – As the old story goes: a prosperous landowner is riding though his estate. He comes across a man with some poached game under his arm. The landowner says, “You’re trespassing! Get off my land!” To which the man inquires, “How did you come to own this land?”

    “Impudent thief! I inherited it from my father.” The landowner replies. But the man is unimpressed, “Where did your father get the land from?” And on this goes until the landowner concludes that his ancestors fought for it. At which point the man says, “Then come down off that horse and I’ll fight you for it now!”

    It’s striking that in the early part of the 20th century and during the debates over the UDHR the view that property was justified based on the productive role it played in society and in the lives of individuals, not on an individual right to property as such – and therefore the human right to property was hardly absolute or central. The UNESCO paper on human rights from 1948 and the debates during the drafting process illustrate that aside from the position from the communist countries a social democratic conception of property rights prevailed among most parties – the US position was a bit ambiguous given Eleanor Roosevelt’s own views and stature, the official position of the Truman administration and the emerging cold war.

    In fact, in the UDHR “property” is only mentioned 3 times. Once in article 2, disallowing discrimination based on property ownership as a qualification for human rights, and in twice in article 17: “(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.” Given later rights to social provision, work, union membership, time off, etc. and the presumed indivisibility of right, it would seem that the limitations on property rights were substantial and subservient to the general goal of protecting and improving human dignity, making such a right fundamentally social and far from absolute.

    I’d suggest two questions fall out of that are vital for the question of a human right to property: (1) how does the ownership of specific forms of property by either individuals or collectives effect human dignity and well-being? And (2), given any human right to property’s basis in such a conception of human dignity, what alternative models of property ownership might be necessary or more adequate?

    In response to these very partial thoughts, I’d like to suggest that looking to social movements advocating for human rights to property on alternative grounds.

    The first is the Movimento dos Trabalhadores Rurais Sem Terra (MST), the landless peasants’ movement in Brazil that occupies land and argues for a collective human right to land ownership based in the peasants socially productive use of land, which is contrasted to the individually lucriative but destructive and anti-social use of land, particularly by multinational corporations. http://www.mstbrazil.org/

    Also, in the US there’s a growing movement around a human right to housing that refuses evictions and claims people’s human right to their homes based on the need for housing and the social value of preserving neighborhoods – more can be found here: http://tinyurl.com/3xshrjl.

  10. Christina says:

    Property as a right.

    Well yes, it’s just that I have other priorities

    1) The European Court in Strasbourg recently ruled that stop and search in Britain without reason was in breach. They should not have had to do that. The Strasbourg court is overwhelmed, with a backlog of cases, some taking up to 5 years to be heard, a most effective way of blocking claims to rights, whether of property, equality, discrimination, et al, should there be a hierarchy?

    2)Property reminds me that we have the noble example of the royals agreeing to higher taxation or less privy purse or something, when crown lands, belong to the crown, and the revenue from the off shore wind farms, are about to bring in massive revenues which might have gone some way towards this country’s deficit . Is there any other country/ island where the royal family own so much of it??

    3)When I think of property and human rights, I think or particularly of DRC.
    Women and slaves as property. Amnesty had a poster on the tube, Rape is cheaper than bullets. WWFWI is supporting both the raped women and girls and the soldier rapists.
    “The men explained they considered the women as objects, and rape was part of their military training. The programme tries to re-educate them …and turn them into role models for other men.”
    http://www.guardian.co.uk/lifeandstyle/2010/dec/03/highlighting-rape-in-congo
    Doing what comes naturally? What it is to be human.

    Perhaps education in women’s rights is higher on my list than property issues.

    4. “What comes naturally: Human rights are real not only because of what we are but because our imagination insists on them”
    I would change the word imagination to humanity a belief in human rights is one of the defining qualities of what it is to be human. But either word has little to do with genetics. Yes Carl.
    I have immense problems with the concept of definition by gene, but I feel that had better wait for another time.
    “Human rights are universal only if we make them so”
    Proclaiming something is not enough to make it true, but it is a necessary preliminary in the struggle for its realization.
    What will you do on Dec 10th? Twitter?
    http://www.ohchr.org/EN/NewsEvents/Pages/HRDay2010.aspx