By Gordon Hull
Last time, I suggested that Thomas Merrill’s logical argument for why the right to exclude was the sine qua non of any conception of property was inconclusive. With that space cleared, I want to focus on what I think a focus on the right to exclude does emphasize. Merrill is right that property theory has tended to take the right to exclude as fundamental. A historical dive into how that right is conceptualized says something important about how we have understood power.
That is, the focus on the right to exclude does show us something important has changed. If we use Locke and Demsetz as points of comparison (in the sense that they present historical endpoints), it is clear that both theories of property rely on both juridical and biopolitical justifications. However, in the Lockean case the biopolitical end is subordinate to the juridical one; in the Demsetzian case, the opposite holds. In other words, we have away moved from a model of property in which juridical power is dominant to one where biopolitical power is dominant.
Let’s start with the Foucauldian distinction between juridical power and biopower. The former, as he articulates it in the last chapter of History of Sexuality, functions either “to take life or let live.” Thus, “the sovereign exercises his right of life only by exercising his right to kill, or by refraining from killing; he evidenced his power over life only through the death he was capable of requiring” (136). In a lecture from roughly the same period, Foucault explains the evolution of the juridical model of power and the emergence of rights discourse within it. Essentially, kings used rights language to establish their prerogatives over feudal lords. Once the feudal lords had been abolished, the rising bourgeoisie turned rights language against the monarchy, eventually abolishing the monarchy with it. Both the monarchy and the bourgeoisie thus used the same understanding of power to ground their arguments; the bourgeoisie “had every interest in developing a system of rights that would permit it to give form to economic exchanges that assured its own social development.”
Foucault then suggests that the juridical model of power is obsolete, or at least of diminishing importance. As he put it in the lecture course, “we must now free ourselves from this juridical conception of power … if we wish to proceed towards an analysis of the real functioning of power, rather than its mere representation.” Power today, then, Foucault proposes, is generative and not repressive, and because of this switch in orientation, it operates directly on life itself, and not, for example, by way of juridical, rights-bearing subjects. This is evident in two aspects. One is disciplinary, and involves the training of the bodies of subjects to perform in certain predictable ways, and to internalize the demands of power, to desire what power already wants. The other he calls “a biopolitics of the population” which is focused not on death but the “administration of bodies and the calculated management of life” and thus “problems of birthrate, longevity, public health, housing and migration” (History of Sexuality 1, 140).
With that in mind, let's consider Locke.
As I suggested, Locke’s understanding of property includes aspects of both juridical and biopower. That said, the juridical element is clearly his priority. The argument in the Second Treatise, one recalls, is to explain “how Men [sic] might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners” (§25. I am following the Laslett edition, but am modernizing the capitalization, spelling and emphases. I treat Locke in the context of IP in much greater detail here). The question, in other words, is about the legitimacy of private property claims. This is an urgent issue, as the earlier parts of the paragraph makes clear. After citing Biblical texts indicating God gave the earth in common to all people, Locke says:
“This being supposed, it seems to some a very great difficulty, how any one should ever come to have a property in any thing: I will not content my self to answer, that if it be difficult to make out property, upon a supposition, that God have the World to Adam and his posterity in common; it is impossible that any Man, but one universal monarch, should have any property, upon a supposition, that God have the World to Adam, and his Heirs in Succession, exclusive of all the rest of his posterity” (§25).
Locke’s Treatises are in part a response to Robert Filmer’s Patriarcha, which defended divine right theories of sovereignty, and the First Treatise was an extended demolition of that argument; in addition to a lot of Scripture, Locke relied substantially on the inability of anyone to trace a lineage of being first-born back to Adam. In Foucauldian terms, the property chapter thus needs to be situated in the terms of the development of rights language by the bourgeoisie against monarchs. How does one get past Biblical grants of common ownership, in such a way as to thwart sovereign claims of owning entire territories and everything on them?
The remainder of Locke’s argument is full of Biblical and juridical justifications that revolve around his core claim that “mixing” one’s labor into things held in common makes them your own (the well-known ambiguities and difficulties in that formula are not relevant here). As Jeremy Waldron suggests, for Locke, “the argument about mixing one’s labor is intended as a specific solution to a more general problem about humans’ finding some way of satisfying their individual needs out of the material basis that God has provided” – i.e., as an instance of the “teleology of natural resources” (159). The teleology is elsewhere as well; for example, Locke repeatedly says that God gave the earth to those who would labor on it, and insinuates this is a consequence of the Fall, as “his [man’s] wants force him to labor” (§35). So too, his invective against waste (§§37-8) is framed in natural law terms. He summarizes the argument as follows:
“And thus, without supposing any private dominion, and property in Adam, over all the world, exclusive of all other men, which can no way be proved, nor any ones property to be made out from it; but supposing the world given as it was to the children of men in common, we see how labor could make men distinct titles to several parcels of it, for their private uses; wherein there could be no doubt of right, no room for quarrel” (§39).
In other words, it is possible to take the Biblical grant seriously, but turn it against those who would claim that the only property claims that can derive from it are those made by divine-right-of-kings theorists. As Richard Ashcraft points out, this argument was important to Locke’s readers, as a standard Whig claim was precisely that a Catholic monarch would begin by taking people’s property (202-3); at the same time, the Treatise was an effort to defend the industrious against idle landowners (264ff) (I am going to leave aside the obvious colonialism here in order to keep this post of finite length).
That said, that Locke can be said to be critical of idle landowners suggests that there are aspects of a nascent liberalist theory of property here. Locke says that the earth was given to humanity for its preservation, but there are signs he wants to go beyond mere living. Many critics have followed MacPherson and taken the introduction of money to be the clearest sign of this, but without engaging the possessive individualism thesis, one can still see that Locke clearly thinks that one of the benefits of property is that it allows for the increase of resources. Thus he claims that improvers “increase the common stock of mankind” (§37), and that land which has been labored on is between 10 and 100 times as productive than if it were allowed to lie fallow. So too, he doesn’t have the word “population,” but in the context of saying that labor is the primary source of value, he claims that:
“This shews, how much numbers of men are to be preferred to largeness of dominions, and that the increase of lands and the right employing of them is the great art of government. And that prince who shall be so wise and godlike as by established laws of liberty to secure protection and encouragement to the honest industry of mankind against the oppression of power and narrowness of party will quickly be too hard for his neighbors.” (§42).
However, he immediately follows that “this by the bye. To return to the argument in hand,” which is to up the ante on the amount of value labor adds to a thousandfold (§43). However, it is not a huge step to pause here and begin to wonder how the wise and godlike prince might measure and encourage such honest industry.
In short, the ideas of population management characteristic of early biopower are there in embryonic form in Locke’s property theory, but they clearly take a back seat to juridical types of argument. Next time, I’ll look at the inversion of this priority in contemporary theory as exemplified by Demsetz’s argument about the origin of property.
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