On Property and Borders

Wherever you are on the political spectrum, this essay is likely to offend you. The “left” will hate my uncompromising views on private property. The “right,” conversely, will be incensed by my principled objections to political borders and walls. So, here goes…

Why property?

Whenever many people must interact together, a common problem is that of scarce means. Resources like food, or land, or tools, or drinkable water, are not sufficiently abundant to allow everyone to have as much of them as they wish.

The Belgian philosopher Frank van Dun identifies three potential solutions to this problem. Two are political, one economic. In the first, Unity, resources are assigned by diktat of some central authority. The second political solution, Consensus, in theory takes into account the views of all, in order to reach an optimal allocation. But in practice, the more people there are, the harder it becomes to take account of each individual’s views. Thus, for large groups, consensus tends to become much like unity, with resources being allotted by a cadre of “people who matter.” Neither of these solutions seems to offer much to the ordinary human individual. So, it’s the third solution, Property, with which I’ll be concerned today.

Frank van Dun describes the property solution thus. “The objective or natural boundaries that separate one person from another also entail objective boundaries that separate one person’s words, actions and works from those of another. What lies within a person’s boundaries is his property.” He also observes: “Property requires only that each person can know which parts of the set of scarce means are his and which are another’s.”

Types of property

Since the Neolithic revolution, the idea of property has been rooted in real estate – areas of land and water. Containable resources, like crops and domesticated animals in the fields and fish in the lakes, also became property. Soon, to these were added the buildings on the land, their fitments, and the tools which enabled people to pursue the necessities of life.

John Locke recounts, in a famous chapter in his Second Treatise of Government, how the idea of property had evolved from these roots up to his day. For him, the key element in making something into property is “mixing labour” with it. Indeed, he observes: “In most [products useful to the life of man] ninety-nine hundredths are wholly to be put on the account of labour.”

Locke tells, also, how the invention of money enabled people to acquire, through their own efforts, more possessions than had been possible before. “And thus came in the use of money, some lasting thing that men might keep without spoiling, and that, by mutual consent, men would take in exchange for the truly useful but perishable supports of life. And as different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them.”

Acquiring property

Property can be justly acquired in three ways. The first, not so easy today, is by “mixing your labour” with resources not previously owned by anyone, and thereby taking possession of those resources. The second is by voluntary trade of resources, including your labour, with others. And the third is a special case of the second, where one individual makes a gift to another of what they themselves have justly acquired.

Tracing back each individual’s justly owned property to its source, I find that every item of it has been earned, wholly or mainly, through labour. And this is so whether the labour is physical or mental, and whether in business, in do-it-yourself or for a wage. So, all justly owned property can be traced back to part of someone’s life being expended in creating or improving it. Thus, as I like to say, property is life.

For most of us, who don’t receive big legacies from rich parents or uncles, this means that our property is the product of our own productive lives. Your earned money and property represent the time and energy, which you used up in order to earn them. So, if a criminal gang or a political government takes away some of your money or property without giving anything of value to you in return, then the part of your life which you used to earn it has been killed. And the killing was pre-meditated. That is why I say that unrequited taxation is murder.

Defending property rights

As to maintaining property rights, Frank van Dun says this. “The property solution appears to require no more than an adequate organization of self-defence.” Indeed so; yet not just at the level of individuals guarding and defending their own, but at the communal level too. For if you have made a mutually satisfactory pact with others over the division of property between yourselves, and a third party tries to take property from any of you, it makes sense to work together to resist the bandit.

Thus, a principal function of any government worth the name – in my view, third behind only maintenance of peace and delivery of objective justice – must be defence of property rights. So, there must be clear, just and generally accepted rules as to who owns what. And ways to claim and to secure compensation when property has been unjustly taken, damaged or destroyed.

Restrictions on property

Besides rights, property also places responsibilities on the owner. For example, if you have a gun, you must not use it to shoot innocent people! And when you own an animal such as a bull, you must fence it in, and make sure it doesn’t gore your neighbour or trample his flowers.

Moreover, you mustn’t intentionally use your property to cause damage, or nuisance, or unreasonable risk, to others’ lives. Nor should you invite on to your property anyone that will cause damage or nuisance to, or steal from, your neighbours. Nor should you use your property with intent to prevent others going about their own lives as they wish. In particular, you must not surround anyone’s property, or unjustly curtail their freedom of movement, or prevent them receiving visitors or services (such as electric power) from outside. This condition, which I call the “principle of non-encirclement,” will be key when, later, I come to look at borders.

I sum up these restrictions by saying: Property must be used with propriety.

Private and public space

I’ll now focus on real property (land, water, buildings). A key characteristic of real property is that it allows the proprietor, whether an individual, a family or a society, to control access to the property. Boundaries can be set around and, at need, within the property, and rules made and enforced on access to it. These rules can specify which parts of it may be accessed by whom, when, and for what purposes. Access rights can even be traded away, for example by renting out the property. All this is accepted as normal in most countries of the world.

Against this right to control access to real property, there’s another consideration, the principle of non-encirclement. People have a need to get from A to B. And if a landowner of a large territory in between places a block on all access to it, this may become unreasonably difficult. The solution, which evolved in England over many centuries of trial and error, is called easements. Easements allow for a general presumption of freedom of movement along designated routes, even across property owned by others.

As a result, land (and water, too) have become divided into two types of space: private space and public space. Private space consists of owned spaces, each with its own boundaries, but not including the easements. Public space consists of those easements. (Here, I use “public” in the sense of “open to all,” not “owned by the state.” There are, of course, both private spaces owned by states, and public spaces owned by individuals or societies.)

The only valid “no-go” borders are those which arise from the property rights of individuals, families and societies. (Including, for now, political states!) And these borders are all either at the edges of, or within, private spaces. Further, the principle of non-encirclement requires that these boundaries can only restrict movement from the public space, or from other private spaces, into a private space, never in the opposite direction.

Thus, absent good and just reasons to deny access to it to specific individuals (for example, to those convicted of serious crimes and thereby sentenced to incarceration), the public space must be open to all, without exception. And once an individual is rightly in the public space, he has the right to go anywhere in the public space. So, the entire public space must be open to all, subject to reasonable conditions like not causing damage or excessive noise. And those conditions must be the same for everyone. Moreover, I expect there would be, ultimately, only one public space, which would be connected. That is, any point of it would be accessible from any other point without leaving the public space.

Communes and associations

When many people live in a small geographical territory, there are two approaches to setting property boundaries there. I describe these as the commune, and the community or association.

A commune is a physical space, owned by a society, in which members of that society can meet or reside. The classic example of a commune is a monastery; but there are many others. For example, a club-house open to the members of the club, or an Oxford or Cambridge college. In a commune, the rules for access to the space are set by the governing body of the society, just like any other policy of that society. A college’s Master and Fellows may decree, for example, that tourists must pay a fee to visit the college, but entry will be free for alumni.

The alternative, a community or association, is where people agree to share a territory for reasons of convenience. Examples are a block of flats, or a gated community. Such properties acquire two levels of borders. There are borders around members’ particular spaces, and borders around the whole. Access to members’ spaces is, in almost all cases, gained through common areas, open only to members and those they invite in.

The essential difference between an association and a commune is that in an association there’s no “owner” above and beyond the members. There may be a society – a management company or home-owner’s association, say – which administers those parts of the space not owned by members. But the members as a whole do not form a society. They have no common purpose beyond living their lives as conveniently as possible, and they have no shared political agendas. And in an association, absent problems such as criminal activity or persistent nuisance, no member may bar another member from inviting in to their own space, and so into the relevant common areas, whomsoever they please.

Political borders

Nation states, and their political governments, claim a right to set borders around their “realms,” and to control who goes in and out. Many people, even those who in other matters favour individual freedom, support stringent border controls. Some even want to supplement them with physical obstacles, such as walls.

On what theoretical basis might such controls be justified? Sovereignty is one candidate. According to this idea, the “sovereign” (originally a king, but today more often seen as the state or government) owns the realm, and everything in it. And the sovereign has the right to make “laws” to bind people in it, and in particular to set controls on who may enter or exit it. In this view, a country is a commune owned by a state.

There are problems with this approach, though. First, if the state owns the whole realm, then none of its subjects can own any property there at all! At best, “property rights” in such a set-up are merely leases from the state. And second, arbitrary exit controls, such as the prohibition on emigration of skilled workers from England in the early 1800s or the Berlin Wall up to 1989, are incompatible with any notion of human rights.

Another possible approach is to regard those living in a particular territory as a community. They do, after all, have something in common; namely, residing in that territory. But if that was indeed the theory behind political borders, any member of the community would be able to invite in from outside anyone they please. A Florida orange grower, for example, would be able to invite to work in his fields Mexicans, Cubans or whoever else he feels is most appropriate. That isn’t what we see today, is it?

Perhaps, then, the theory may be that those in a political state’s territory form, not a community, but a society? Even though the agreement must be tacit, since people have never signed up to membership of such a thing? That would indeed enable a governing body, acting on behalf of all the members of the society, to set rules on who may enter the territory.

Such a fiction might perhaps have worked centuries ago, when nations were small and culturally quite homogeneous. But today, the idea that tens or hundreds of millions of people, with diverse and often diametrically opposed cultures, religions and political ideologies, all form one society with (in Rousseau’s phrase) a “general will,” seems ridiculous. As does the idea that in a world-wide economy, a society abruptly cuts off at some arbitrary border.

If a state were a private landowner, it could of course rightly set up borders for, and control access to, its own property. But if it’s a private landowner like any other, it must keep to the principle of non-encirclement. If it has land at, say, Heathrow Airport or the Port of Dover, it must allow people to go around, or to use its easements to cross, that land without hindrance. This shows that today’s states claim a moral right to be more than a private landowner. So, we’re back to the idea that a country is a commune owned by the state.

Legal and illegal entry

Lastly, legal versus illegal entry to a state (and by extension, legal versus illegal immigration).

For me, what is right and what is wrong must be the same for everyone. That is, indeed, implied by the concepts of the rule of law and equality before the law. So, you cannot reasonably claim, of twin brothers Mo and Ahmed, neither of whom has ever committed a crime, that it’s legal for one to be in a particular place in the public space, and illegal for the other.

You can, of course, say that Mo is rightly on your private property, because he’s a plumber, and you’ve invited him in to fix a leak. While Ahmed, if he was in the same place, would be trespassing, unless you chose to invite him in. But by calling one of them legal in the public space and the other illegal for being in the same place, you not only reject the idea of equality before the law, but also accept the unjust and dangerous notion that “laws” made by politicians, or quotas devised by bureaucrats, are right just by virtue of having been made.

To sum up

Property rights arise out of the need to resolve conflicts over scarce resources in a way that is fair to all. All justly acquired property is obtained through labour in one form or another.

Real property allows the owner to control access to the property. But there’s a big difference between property in a community and in a commune. In a community, one member cannot rightly stop another member inviting on to their property whoever they wish. Whereas in a commune, access rules are set by the governing body of the society which owns the commune.

The theoretical basis, on which political borders are founded, is very dubious. To justify the existence of such borders, either the state must own everything (so there are no property rights), or everyone within the borders must be tacitly assumed to be members of one society. Which, on examination, is ridiculous under today’s conditions. And lastly, to arbitrarily divide people into legal and illegal entrants to, or residents in, a political state is unjust.

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