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Property and Ideology

Published online by Cambridge University Press:  09 June 2015

Michael Robertson
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Extract

My contention in this paper is that many of our commonly accepted ideas about property are defective. But these deficiencies are not just simple, surface mistakes that could be cleared up easily. They stem from a flawed conceptual framework used in making sense of and justifying property relationships. I also contend that this flawed conceptual framework maintains property relationships that are unjust. These property relationships produce an unequal distribution of wealth, status, and power, as well as reduced opportunities for autonomy and self-development. This is unjust because, I believe, no satisfactory justification has been given for this inequality. Exposing some weaknesses of this conceptual framework is thus a step in promoting more egalitarian property relationships.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 8 , Issue 2 , July 1995 , pp. 275 - 296
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1995

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References

1. For the distinction between critical and neutral senses of ideology, see Thompson, John Ideology and Modern Culture (Cambridge, UK: Polity Press, 1990) ch. 1.Google Scholar See too Eagleton, Terry Ideology: An Introduction (London: Verso, 1991);Google Scholar McLellan, David Ideology (Milton Keynes: Open University Press, 1986).Google Scholar

2. See Hay, Douglas “Property, Authority, and the Criminal Law” in Albion’s Fatal Tree, Hay, D. et al. eds, (London: Allen Lane, 1975) at 26,Google Scholar footnote 2, where Hay himself borrows it from another author. For an article that focuses on property and ideology in a wider sense that includes race and gender as well as class, see Singer, Joseph “Rereading Property” (1992) 26 New Eng. L. Rev. 711.Google Scholar

3. For a more extended discussion of the importance of these cultural structurings of our apprehension of the world, see Berger, Peter and Luckmann, Thomas The Social Construction of Reality (Garden City, NY: Basic Books, 1967)Google Scholar and Geertz, Clifford The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973),Google Scholar especially “The Impact of the Concept of Culture on the Concept of Man”, and “Thick Description: Toward an Interpretive Theory of Culture”.

4. See for e.g., Macpherson, C.B. “Capitalism and the Changing Concept of Property” in Kamenka, E. & Neale, R. eds, Feudalism, Capitalism and Beyond(Canbem: Australian National University Press, 1975) at 104;Google Scholar Grey, Thomas “The Disintegration of Property” in Pennock, J. & Chapman, J. eds, Property: Nomos XXII (New York: New York University Press, 1980) at 69;Google Scholar Nedelsky, Jennifer “American Constitutionalism and the Paradox of Private Property” in Elster, J. & Slagstad, R. eds, Constitutionalism and Democracy (New York: Cambridge University Press, 1988) at 241;CrossRefGoogle Scholar Edgeworth, Brendan “Post-Property?: A Postmodern Conception of Private Property” (1988) 11 U. of New South Wales L. J. 87.Google Scholar

5. For good accounts of the intricate history of thinking about property in the Western tradition, see Macpherson, C.B. ed., Property: Mainstream and Critical Positions (Toronto: University of Toronto Press, 1978);Google Scholar Schlatter, Richard Private Property: The History of an Idea (New Brunswick, NJ: Rutgers University Press, 1951);Google Scholar Scott, William In Pursuit of Happiness: American Conceptions of Property from the 17th to the 20th Century (Bloomington: Indiana University Press, 1977).Google Scholar For more detailed analysis of the arguments made in this tradition, see Becker, Lawrence Property Rights: Philosophical Foundations (London: Routledge & Kegan Paul, 1977);Google Scholar Carter, Alan The Philosophical Foundations of Property Rights (Toronto, ON: Harvester Wheatsheaf, 1989);Google Scholar Ryan, Alan Property and Political Theory (New York: Blackwell, 1984);Google Scholar Waldron, Jeremy The Right to Private Property (Oxford: Clarendon Press, 1988);Google Scholar Munzer, Stephen A Theory of Property (Cambridge: Cambridge University Press, 1990);CrossRefGoogle Scholar Reeve, Andrew Property (Houndsmills, England: Macmillan, 1986).CrossRefGoogle Scholar Useful collections of articles can be found in (1993) 6 The Can. J. of L. and Juris.; (1990) 73 The Monist; Property: Nomos XXII, supra note 4.

6. More sophisticated accounts of what is meant by “private property”, and of the alternatives to it, can be found in Jeremy Waldron, supra note 5, ch. 2, and C.B. Macpherson, supra note 4.

7. See Tollefson, Chris “Corporate Constitutional Rights and the Supreme Court of Canada” (1993) 19 Queen’s L. J. 309 at 313–20;Google Scholar Horwitz, Morton The Transformation of American Law 1870–1960 (New York: Oxford University Press, 1992) ch. 3;Google Scholar Bauman, Richard “Liberalism and Canadian Corporate Law” in Devlin, R. ed., Canadian Perspectives on Legal Theory (Toronto, ON: Emond Montgomery, 1991) 75 at 82–84;Google Scholar Mayer, Carl “Personalising the Impersonal: Corporations and the Bill of Rights” (1990) 41 Hastings L. J. 577.Google Scholar In New Zealand, section 29 of the New Zealand Bill of Rights Act, 1990 provides that “the provisions of this Bill of Rights apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons.”

8. Honoré, Tony “Ownership” in Guest, A.G. ed., Oxford Essays in Jurisprudence (London: Oxford University Press, 1961) at 147.Google Scholar

9. Cohen, Morris “Property and Sovereignty“ reprinted in Property: Mainstream and Critical Positions, supra note 5 at 159–60 and 164–65.Google Scholar

10. Karl Marx had made similar points before Morris Cohen. He stressed the importance of differentiating between private property that is owned and worked by the producer alone, and private property that is worked by the wage labour of others. See Marx, Karl Capital: A Critical Analysis of Capitalist Production (Moscow: Foreign Languages Publishing, 1961)Google Scholar reprinted in part as “Bourgeois Property and Capitalist Accumulation” in Property: Mainstream and Critical Positions, supra note 5 at 67. Like Cohen, Marx saw that if people have to become employees of others in order to live, this gives the employers great power over them.

11. For more concrete descriptions of this type of power in operation, see the oral histories collected in Terkel, Studs Working (New York: Penguin, 1985).Google Scholar

12. Lindblom, Charles Politics and Markets: The World’s Political-Economic Systems (New York: Basic Books, 1977) at 171.Google Scholar

13. This point was noted in Cohen, Morris “Property and Sovereignty” reprinted in Property: Mainstream and Critical Positions, supra note 5 at 160,Google Scholar and was repeated more forcefully later in Galbraith, John Kenneth The New Industrial State 3rd ed. (Boston: Houghton-Mifflin, 1979) chs. 18 and 19.Google Scholar For a more general exploration of the cultural power of big business, see Deeks, John Business and the Culture of the Enterprise Society (Westport, CN: Quorum Press, 1993).Google Scholar

14. For an elaboration of the idea that business corporations are like mini-governments, see Dahl, Robert A Preface to Economic Democracy (Cambridge, UK: Polity Press, 1985) at 113ff.Google Scholar This is different from the related argument that through privatisation, corporations are coming to perform many of the functions that the state performed in the past, e.g., “running prisons, providing security, collecting trash, handling mail and information, and even supplying education. See C. Mayer, supra note 7 at 659.

15. Tawney, R.H. The Sickness of an Acquisitive Society (London: George Allen and Unwin, 1920)Google Scholar reprinted in part as “Property and Creative Work” in Property: Mainstream and Critical Positions, supra note 5 at 144. See too Karl Marx Capital, supra note 10, reprinted in part as “Bourgeois Property and Capitalist Accumulation” in Property: Mainstream and Critical Positions, supra note 5 at 67.

16. For a good example of the home paradigm operating ideologically in the way I am describing, see Gordon, Robert “New Developments in Legal Theory” in Kairys, D. ed., The Politics of Law (New York: Pantheon, 1982) at 287–88.Google ScholarPubMed

17. See Singer, Joseph “The Reliance Interest in Property” (1988) 40 Stan. L. Rev. 614.CrossRefGoogle Scholar They resist any application of even the orthodox harm principle in such contexts.

18. See C. Mayer supra note 7 at 606–11.

19. Arguments for this more radical position can be found in Walzer, Michael Radical Principles (New York: Basic Books, 1980) ch. 17.Google Scholar (“Town Meetings and Workers’ Control: A Story for Socialists”); Ellerman, D. & Pitegoff, P. “The Democratic Corporation: The New Worker Cooperative Statute in Massachusetts” (1982–83) N.Y.U. Rev. of L. and Social Change 441.Google Scholar

20. For a general survey see Kiloh, Margaret “Industrial Democracy” in Held, D. & Pollitt, C. eds, New Forms of Democracy (Beverly Hills, CA: Sage Publications, 1986) at 14.Google Scholar

21. For a description of this system, see Hadden, Tom Company Law and Capitalism, 2nd ed. (London: Weidenfeld and Nicolson, 1977) at 447–71,Google Scholar and Hopt, Klaus “Labour Representatives on Corporate Boards…” (1994) 14 Internat’l Rev. of L. and Econ. 203.CrossRefGoogle Scholar

22. For a detailed argument that a commitment to democracy requires producers' co-operatives in the economic realm, see R. Dahl, supra note 14.

23. The paradigm of the family home and the paradigm of the entrepreneur or person who works their own productive asset can be combined in the example of the family farm. This powerful combination may have special force in agricultural countries such as New Zealand.

24. Sir Bob Jones’s “Punchlines”.

25. Locke, John Second Treatise of Government reprinted in part as “Of Property” in Property: Mainstream and Critical Positions supra note 5 at 17.Google Scholar Presumably these men have wives back at the homestead who are labouring to cook food, make clothing, raise children etc., but their presence and their labour is not mentioned by Locke, let alone rewarded with property rights. See J. Singer, supra note 2.

26. See Hannah, Leslie The Rise of the Corporate Economy, 2nd ed. (London: Methuen, 1983) at 18.Google Scholar

27. See ibid., chs. 1 and 2; Chandler, Alfred D. Jr. The Visible Hand: The Managerial Revolution in American Business (Cambridge, MA: Belknap Press, 1977),Google Scholar Introduction and Part I (“The Traditional Processes of Production and Distribution”); R. Dahl, supra note 14 at 69–71; Tawney, R.H. The Sickness of an Acquisitive Society, supra note 15, reprinted in part as “Property and Creative Work” in Property: Mainstream and Critical Positions, supra note 5 at 137–38.Google Scholar

28. See generally Hadden, Tom The Control of Corporate Groups (London: Institute of Advanced Legal Studies, 1983).Google Scholar

29. For a relatively recent empirical study confirming these features of modern corporate capitalism, see Herman, Edward Corporate Control, Corporate Power (Cambridge: Cambridge University Press, 1981).Google Scholar

30. Heilbroner, Robert & Thurow, Lester Economics Explained, updated ed. (New York: Simon and Schuster, 1987) at 42–44 [emphasis in original].Google Scholar

31. See Dobb, Maurice Studies in the Development of Capitalism, revised ed. (New York: International Publishers, 1963) ch. 6.Google Scholar

32. See Marx, Karl & Engels, Friedrich The Communist Manifesto (New York: Modem Reader, 1964)Google Scholar reprinted in part as “Bourgeois Property and Capitalist Accumulation” in Property: Mainstream and Critical Positions supra note 5 at 61–64.

33. R. Heilbroner & L. Thurow, supra note 30 at 58 [emphasis in original].

34. Kuhn, Thomas The Structure of Scientific Revolutions 2nd ed. (Chicago: University of Chicago Press, 1970).Google Scholar

35. Burnham, James The Managerial Revolution (Bloomington: Indiana University Press, 1962)Google Scholar reprinted in part as “Ideology and Managerial Control” in Sutton, Brenda ed., The Legitimate Corporation (London: Blackwell, 1993) at 125–26.Google Scholar Hegel made the same point more metaphorically when he said that the owl of Minerva only spreads her wings at dusk.

36. Before Burnham there had been Berle, Adolf & Means, Gardiner The Modern Corporation and Private Property revised ed. (New York: Harcourt, Brace and World 1968. Originally published 1932.).Google Scholar Before Berle and Means there may have been Marx: see Avineri, Shlomo The Social and Political Thought of Karl Marx (London: Cambridge University Press, 1968) at 174–84.CrossRefGoogle Scholar

37. See for e.g., Child, James “The Moral Foundations of Intangible Property” (1990) 73 The Monist 578.CrossRefGoogle Scholar

38. T. Hadden, supra note 28 at 2.

39. R. Dahl, supra note 14 at 72–73.

40. In my definition of ideology I referred to the disguising or vindicating of class interests. For arguments that the managers under corporate capitalism form a new class, see McDermott, John Corporate Society (Boulder, CO: Westview Press, 1991);Google Scholar Ehrenreich, Barbara & Ehrenreich, John “The Professional-Managerial Class” in Walker, Pat ed., Between Labor and Capital: The Professional Managerial Class (Boston: South End Press, 1979) at 5–45;Google Scholar James Burnham, The Managerial Revolution supra note 35; J.K. Galbraith, supra note 13; and A.D. Chandler, supra note 27.

41. See Simon, William “Contract versus Politics in Corporation Doctrine” in Kairys, D. ed., The Politics of Law: A Progressive Critique 2nd ed. (New York: Pantheon, 1990) at 387.Google Scholar

42. See E. Herman, supra note 29 at 99, footnote 63 where it is reported that 90% of large firms in 1979 expected to finance themselves with retained earnings. Hadden reports that internal “borrowing” between the companies that make up large corporate groups is widespread, thus reducing the need to rely on external borrowing or share capital. See supra note 28 at 15–18.

43. For the status of corporate managers as a class, see supra note 40.

44. See supra note 33 and accompanying text.

45. This argument was noted by both Marx and Mill. See The Communist Manifesto, supra note 32, reprinted in part as “Bourgeois Property and Capitalist Accumulation” in Property: Mainstream and Critical Positions, supra note 5 at 63; Mill, John Stuart Principles of Political Economy (New York: A.M. Kelly, 1965) Book II ch.l.Google Scholar

46. See Weitzman, Martin “Profit-sharing Capitalism“ in Elster, J. & Moene, K. eds, Alternatives to Capitalism (Cambridge: Cambridge University Press, 1989) at 61;Google Scholar D’Art, Daryl Economic Democracy and Financial Participation (London: Routledge, 1992).CrossRefGoogle Scholar

47. See the discussion of ESOPs in D’Art, ibid.

48. The statement in the text skims over a great variety in the ways cooperatives can be organised. The literature on co-operatives is vast. A good place to start is Dahl, supra note 14, chs. 3, 4 and 5; the Introduction by Elster & Moene to Alternatives to Capitalism supra note 46; and Ellerman & Pitegoff, supra note 19.

49. R. Dahl, supra note 14; J.S. Mill, supra note 45, Book IV, ch. 7.

50. For a fascinating article explaining how a commitment to private property and a free market can be compatible with many economic arrangements other than the ones that currently exist in Western-style capitalism, and especially with arrangements which promote socialist goals of democracy and egalitarianism, see Klare, Karl “Legal Theory and Democratic Reconstruction: Reflections on 1989” (1991) 25 U. of British Col. L. Rev. 69.Google Scholar

51. Reich, Charles “The New Property” reprinted in part in Property: Mainstream and Critical Positions, supra note 5 at 179.Google Scholar

52. See D. D’Art, supra note 46 at 115.

53. This is the position reached by Dahl, supra note 14. The German system of employee representatives on corporate boards referred to in note 21 promotes industrial democracy, but it is not based on a property arrangement. Statute requires it; it does not rest on share ownership by the employees.

54. The empirical evidence in favour of this contention is reviewed by Dahl, supra note 14 at 94–98. He finds that “the evidence, although incomplete, is mixed.”

55. See J. McDermott, supra note 40 for an elaboration of this point.

56. See Honoreé, T. “Ownership’, supra note 8 at 109.Google Scholar

57. For detail on how this division of the bank creates “prefeasibility studies” which are kept in a “product bank”, and how it assists groups of workers to set up their own new co-operatives based on these or the workers’ own ideas, see Dahl, supra note 14 at 157–58, and Ellerman & Pitegoff, supra note 19 at 444.

58. For the roots of this idea, see Dahl, supra note Hat 154–55; Walzer, supra note 19 at 290; and Nove, Alec The Economics of Feasible Socialism (London: George Allen & Unwin, 1983) at 207.CrossRefGoogle Scholar

59. There are other property paradigms that deserve similar scrutiny. Mayer, supra note 7, explores the “artificial entity” and “natural entity” paradigms that have been used to think about the corporation. Jennifer Nedelsky explores the significance of the image of property as a boundary protecting us from others in “Law, Boundaries, and the Bounded Self in Post, R. ed., Law and the Order of Culture (Berkeley: University of California Press, 1991) at 162.Google Scholar Another important example is the image of private property as a zone of freedom, contrasted to government regulation. This paradigm supports the argument that private property maximises freedom. Legal Realists like Robert Hale and Morris Cohen, and Critical Legal Scholars like Karl Klare, Duncan Kennedy and Joseph Singer have shown convincingly, I believe, that this picture is unsustainable. The state is always very present in the “private” zone in the form of background rules of property and contract that embody contestable political choices as to which groups are to have power over others. See the readings under the heading "The Critique of the Public/Private Distinction” in Fisher, W.W., Horwitz, N.J. & Reed, T.A. eds, American Legal Realism (New York: Oxford University Press, 1993);Google Scholar Singer, Joseph “Legal Realism Now” (1988) 76 Cal. L. Rev. 465;CrossRefGoogle Scholar Karl Klare, supra note 50; Klare, Karl “Workplace Democracy and Market Reconstruction: An Agenda For Legal Reform” (1988) 38 Catholic U. L. Rev. 1;Google Scholar Kennedy, Duncan “The Stakes of Law, or Hale and Foucault!” (1991) 15 The Legal Stud. Forum 327.Google Scholar

60. R. Gordon, supra note 16 at 291.