[p2p-research] [Commoning] just a word on "property"

[j.martin.pedersen]

Hi Silke,

On 03/01/11 20:41, Silke Helfrich wrote:
> On Fri, 2010-12-31 at 13:00 +0000, j.martin.pedersen wrote:
>>  - from a philosophical perspective of property
>> relations - I will argue that the focus here is on the *thing*, which I
>> in turn will argue is a misleading focus derived from the philosophy of
>> capitalism, where property has become a noun and thus signifying an
>> object. Property, however, is (better understood as) social relations
>> with regard to things, and it is not the nature of the object or its
>> essence that ought to be important in the first instance, but the social
>> relations and environments that affect it and are effected by it that
>> are important in the first instance of articulating property relations
>> and the architecture of social organisation.
> 
> I completely agree, that the focus on "the thing" (be it property or
> common pool resources or sth else) is misleading, because it is
> signifying the object.
> But I slightly disagree with Martin as well, because I think that
> property is about social relationships and not about the relationsship
> between a person and an object. It is all about the relationship between
> one/several person(s) and another /several others, because it is all
> about who has the right or power to exlude sbd. else from access and use> Dear all,
> 
> back to "work" and trying to digest the messages, many thanks for the
> lively disucssion. Just a word on the property issue:  
> of "things".

We are in fact in perfect agreement :)

Property = Social relations (which of course are between people), but
they are *with regard to* things.

This is a fairly standard jurisprudential position, which unfortunately
is lost in most economistic accounts that wittingly or unwittingly
follow the philosophy of neoliberal conceptions - which in turn of
course are manifestations of the success of the commodity and the
fetishism it spreads and spreads with.

I have excerpted a section in which this is outlined here:
http://commoning.wordpress.com/2011/01/03/property-as-social-relations-not-a-thing/

and pasted below,

cheers,
martin


============


Property as social relations.

To begin with, then, we need to overcome the idea that property is a
simple person-thing relation that implies an absolute (or even
conditional) entitlement:

“We often think of property as some version of entitlement to things: I
have a right to this thing or that. In a more sophisticated version of
property, of course, we see property as a way of defining our
relationships with other people. On such versions, my right to this
thing or that isn't about controlling the "thing" so much as it is about
my relationship with you, and with everybody else in the world” (Rose
1993: 27-28)

Hohfeld’s matrix.

The more nuanced perspective can in great part be attributed to “a
pivotal article” (ibid: 42, note 10) by Wesley Newcomb Hohfeld in which
he outlined ‘Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning’ (1913). However, because the work of Hohfeld stands as a
milestone in the liberal and legal positivist traditions, not much - if
any - “politically radical” work has been built on his conceptions;
indeed there is a general reluctance amongst anti-capitalists to engage
with liberal jurisprudence, including structural analyses of property.
This can be taken to reflect the conflation shared across the political
spectrum and in the public imagination that property in general is seen
as equal to the very particular social relations that exclusive, private
property rights give rise to. Or, private property rights, particular to
capitalism, are understood as property in general. Writing on property
often does not unpack a given instance of property properly, but for
instance merely states that “property is theft”. That is in itself a
false reference, since Proudhon arguably was among the first to
seriously analyse and unpack the idea of private property, which he did
not simply write off as theft (Waldron 1988)1.

Hohfeld’s important contribution to jurisprudence was a way of
systematising components of legal reasoning. His analysis applies to
property as one of the sub-systems of law. Hohfeld “expounded the lowest
common denominators of the law by reference to two squares of
correlations and opposition” (Harris 1996: 120-121):

  Right                      Privilege


  Duty                       No-right

  Power                   Immunity

  Liability               Disability

Illustration 1: Hohfeld's matrix. (this obviously doesnt work being pasted)

In this matrix there is correlation (vertically) between right and duty,
between privilege and no-right, between power and liability and between
immunity and disability; while there is an opposition (diagonally)
between right and no-right, between duty and privilege, between power
and disability, and between liability and immunity. The top half of the
squares refers to the entitlements that characterise jural relations,
the bottom half to its correlated position.2 On Hohfeld’s account of
jural relations, each such relation consists of four basic components:
(i) the person or group of persons holding an entitlement (X); (ii) the
person or group of persons occupying the position correlative to the
entitlement (Y); (iii) the form of the relation (i.e. whether it is,
say, a right-duty relation or a power-liability relation); (iv) and the
content thereof (the specification of the right-duty relation).

A Hohfeldian explication of proprietary entitlements would hence specify
the content of such entitlements. That is, it would specify what Y must
do or cannot do, and what X may do or can do. With regard to proprietary
entitlements, any suitable specification would necessarily refer to the
object or resource with regard to which X and Y have to behave in a
certain way3. In that sense, the relation of primary importance is the
relation between people (X and Y, you and me), even though this relation
will concern things. We can begin to understand property relations as
social relations between people – all people – with regard to any given
thing.

The matrix permits us to understand the simple dominion conception – the
vision of one individual having absolute, legitimate control over a
thing – as implicating everyone else. Our starting point thus becomes
the web of relations between people, and the interrelated nature of
their actions which always involve objects, things, resources as either
settings or props. Hohfeld's work added that multi-lateral dimension to
liberal jurisprudence and thus raised awareness of the complexity of the
social relations that are involved in any given instance of property
relations4.


Social relations as starting point.

In a related context, yet with a different analytical approach, Sol
Picciotto takes note of the importance of the starting point in analyses
of property: “Property should be thought of in the first instance as
social” (2003).

In formulating what can be understood as a general understanding of
property relations, Irving Hallowell, following the versatile Huntington
Cairns (1935) and Hohfeld, emphasises the triadic character of the
institution of property. In a classic anthropological theory essay from
1955 Hallowell writes: “'A owns B against C', where C represents all
other individuals” (Hallowell 1974: 239). The dominion conception of
property, by contrast, is dyadic. A dyadic conception of property would
propound that A owns B, without C even entering into the equation. The
difference is one of starting point, where the dyadic conception fails
to see that the notion of an entitlement logically implicates those whom
it is an entitlement against.

The triadic understanding as a starting point in analyses of property
relations permits a more thorough understanding of property relations in
general. It also facilitates and enhances an analysis of any given
particular set of property relations within a specific economic system
or culture, such as capitalist democracy.

“If we wish to understand property as an institution in any society our
primary concern must be an analysis of the pattern of rights, duties,
privileges, powers, etc., which control the behavior of individuals or
groups in relation to one another and to the custody, possession, use,
enjoyment, disposal, etc., of various classes of objects. In such an
undertaking we have to reckon with an exceedingly complex network of
structural relations and a wide range of variables, the specific pattern
or constellation of which constitutes the structure of property as a
social institution in any particular case.” (Hallowell 1974: 239)
Here we have the definition of property with which I would like to
start. Property relations, on this view, are social relations. These
social relations make up and are shaped by a “pattern of rights, duties,
privileges, powers, etc., which control the behavior of individuals or
groups in relation to one another and to the custody, possession, use,
enjoyment, disposal, etc., of various classes of objects”. The etceteras
of the definition might worry the analytic philosopher, but they open up
the general concept of property to a wide variety of particular
configurations. This open definition should not prove to be
controversial. It is reflected in Jeremy Waldron's work where he defines
property as “the concept of a system of rules governing access to and
control of material resources” (Waldron 1988: 31). It is taken for
granted in the elaborate frameworks that Andrew Reeve (1986), and John
Christman (1994) present, as well as in discussions of intellectual
property rights, such as Hettinger’s “Justifying Intellectual Property
Rights” (1989). All start from a perspective of property as social
relations between people with regard to things – patterned by legal or
customary protocols that guide behaviour.

As already mentioned, Harris’s authoritative treatment of property,
however, argues that property protocols have distinctive features
without which they might still be protocols guiding people’s behaviour
with regard to things, but they would not be property protocols. It will
be instructive to familiarise ourselves with Harris’s terminology and
account at this point.