By Gordon Hull
In the two previous posts, I first 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. I then offered a brief reading of the Foucauldian distinction between juridical and biopower, applying it to Locke to suggest that in Locke’s case, both aspects of power were present, but juridical was dominant. In what follows, I want to argue that the opposite is the case with the contemporary Demsetzian account: here, biopower is dominant. In other words, a look at endpoint historical instances of property theory suggests that the view of power underlying them has changed from Locke’s time to ours, even as the (quasi-juridical) right to exclude remains a common thread.
To return to Merrill’s thoughts on exclusion, how might we combine exclusion with Foucauldian theories of power? An initial argument is straightforward, and goes something like this: any conception of property that says the right to exclude is essential retains at the very least that much of a juridical understanding of property. Since rights are an aspect of juridical power, and since juridical power is about the right to repress and to prevent, it’s easy enough to see the exclusionary right as juridical. Merrill’s arguments about the priority of the right to exclude over the right to use and develop suggests that any biopolitical emphasis on optimization is ultimately secondary to a basic ability to repress. Importantly, Merrill extends his argument to commons-based regimes: any internal use privileges are secondary to the initial ability of the villagers to exclude non-members. In short, even as we increasingly live by biopolitical regimes, juridical power retains its force at the very core of those regimes: the property right which has been the central feature of capitalism.
That narrative has a lot to recommend it. I also think another, more subtle, narrative is possible. Most likely, the two narratives need to be thought of as coexisting, even if there is some tension between them. According to this other narrative, the right to exclude has itself subtly shifted. Its initial characterization was undoubtedly dominated by juridical concepts, which was the point I tried to make with regards to Locke. But if we look at the dominant narrative about property now, the right to exclude itself has become mostly biopolitical. In other words, a claim today that the right to exclude is the most important attribute of property means something different than it did in Locke’s time.
First, there is a tendency to see exclusion as part of a series of potential attributes of property, without an effort to establish logical priority of one over the other. For example, after developing a taxonomy of attributes that property regimes might regulate, Julie Cohen specifically distinguishes her account from a bundle of rights, especially the focus on exclusion:
“Property on the ground has no ideal form; it is a vibrant and diverse collection of institutional solutions to resource coordination problems. The point is not simply that property entitlements are bundles of rights. The “bundle of rights” terminology, while apt for some purposes, often has had the unfortunate effect of making the resource-dependent attributes of property institutions fade into the background. Property rights are bundles of attributes constructed and assembled for particular purposes, and as such they exhibit systematic patterns. It seems most sensible to understand “property” as an umbrella term covering a set of institutional choices that are related by an emphasis on exclusivity and exchange. Exclusivity, however, varies both in degree and in kind; one may have exclusivity in access, in use, or simply in enjoyment of rents. Similarly, property institutions may facilitate market exchange of title, or may facilitate market exchange of value for different kinds of access and/or use, and society may choose to recognize a variety of public-access privileges. Exclusionary rights, exchange structures, and privileges can be, and generally are, calibrated differently for different resources” (32)
This view is a consequence of viewing property as a regime that is designed to help solve resource-coordination issues between people, and not to assign rights to an individual.
Consider the standard, Demsetzian account of how property regimes arise. This account is itself incoherent without a right to exclude others. For Demsetz, however, the need to exclude others has absolutely nothing to do with the need to exercise repressive power. On the contrary, it is so that power can be generative. Thus, on Demsetz’s account, property regimes emerge when the value of a (finite) resource rises to the point that a property regime becomes an efficient means of managing it. One way that efficiency arises is when property avoids a tragedy of the commons. In that scenario, individuals overconsume a resource, depleting it for themselves and others in the future. Overgrazing is the standard example, and it occurs because individual shepherds gain all the benefits (fat sheep for market)), but none or only some of the costs (decline in the pasture) from overgrazing (there is a separate future generations problem here, which I’m going to set aside). Assigning property rights – giving each shepherd a plot of land the curation of which he is responsible for – then aligns incentives properly: if I overgraze my land, I (and only) suffer as a result. There is thus an incentive not just to conserve the resource, but to develop it. If you like, the argument basically says that concerns about dynamic allocative efficiency are more important than static efficiency, and so a property regime’s internalization of costs and benefits guarantees the dynamic efficiency.
When talking about intellectual property, Demsetz tells the same story: deadweight loss (those who want the protected good but can’t afford it) may be a problem, but it’s a bigger problem if the incentives to produce the good aren’t there in the first place. There are enormous problems with this account of IP (see for example, here, here, and here). And there are difficulties both in the linearity Demsetz sees in the development of resources from commons to property (see here) and in the account’s ability to distinguish economic from political motivations for property (see here and here). But in all of that literature, the entire discussion is premised on questions of resource efficiency and optimization.
Even if you go back to Lockean justifications for property, we see that possible narratives have shifted. For example, David Schmidtz uses the language of externalities to reread Locke. Thus he proposes of Locke’s “enough and as good” proviso that:
“The truth is, first appropriators begin the process of resource creation; latecomers get most of the benefits …. Original appropriation is a cornucopia of wealth, but mainly for latecomers. The people who got here first never dreamt of things we latecomers take for granted. The poorest among us have life expectancies exceeding theirs by several decades. This is not political theory. It is not economic rhetoric. It is fact” (4).
In an earlier paper, he had emphasized the conclusion that sometimes, appropriation is not just permitted but required when it leaves not just “as much and as good,” but “more” for future users.
All of this of course only makes sense if the property entitlement comes with a right to exclude others (that’s what internalizing means), but everything else about it – including the reason why you might have a right to exclude (and why you might limit it) is biopolitical. This matters because theoretical discourse matters. Particularly in the case of law, dominant theoretical discourses come to have profound implications for how we understand ourselves and how the institutions through which we must understand ourselves function. In short, if the way we talk about property has fundamentally shifted, then that will have downstream implications for how we talk about ourselves, and what we mean when we talk about property. As long as property rights are central in our socioeconomic system, then the “truth” about property becomes a truth about ourselves, as part of our self-articulation has to align itself with the truth about property. In short, property rights function as a regime of subjectification.
I’ll end with another comment from Cohen:
“When evaluating incentives-to-production reasoning as a justification for IP, it is useful to remember that incentive talk about copyrights and patents is also expressive talk. To borrow from Carol Rose, it is a way of expressing our thoughts about the entitlements of authors and commercial intermediaries ‘within a structure of symbols approved and understood by a commercial people.’ [the reference is to Rose’s “Possession as the Origin of Property”] Incentive talk about IP says something important about how we understand ourselves. But if so, then when we invoke incentives we are not simply disinterested observers” (39).
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