May 27, 2006
Baron on Property and "No Property"
One of the things I'm hoping to do a little of is to comment on recent property articles, as well as recent monographs (like Bourgeois Nightmares, Broken Trust, and Pana O'ahu). Last fall, Ben announced Jane Baron's Property and "No Property." The abstract reads
This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many (and, of course, the government) without having (m)any reciprocal power(s) over others. I call this situation no property.
This paper seeks to describe the legal category no property. Rather than enumerate its iterative disabilities, I enlist a recent novel, Valerie Martin's Property, in the hopes of describing no property imaginatively. The novel illustrates the ways in which legal states that deprive persons of the ability to own or to control property - slavery and coverture - render persons susceptible to the power of others. Notwithstanding enactment of Married Women's Property Acts and the end of slavery, many today - such as the homeless and the extremely poor-remain in a position of comparable legal and social vulnerability. For persons so situated, the freedom-enhancing aspects of property are more or less beside the point. What they experience as a legal matter is, to recur to some older terms, duties, no-rights, liabilities and disabilities. These iterative negatives together constitute a status, a status in which it becomes possible for them to be seen as, essentially, objects, not subjects.
Effective regulatory schemes take existing schemes of property rights into account. No property is such a scheme. Because it consists so largely of negatives, of rights and powers that people do not have, it is difficult to recognize it as such. But it is as serious a constraint on regulatory possibility as, say, the ownership rights of those affected by limitations on the cutting of old growth forests or by required reductions in factory emissions. If we want to do something about the poor and the homeless - whether it be banishing them to special zones or targeting services to them - we will need to understand the legal situation in which we find them. For this reason, I argue, we must continue to seek to understand and define the legal category of no property.
As Professor Baron says, she uses the vehicle of Valerie Martin's 2003 novel, Property, as a way of addressing a huge question: "does property enhance freedom?" I haven't yet had a chance to read Property, which is about slavery--and humans as property. But based on the description in Baron's article, I wonder if the article should be called "Property and More Property" or "Property and People as Property." The "Property and 'No Property'" may not completely capture the position of the enslaved people--they're under more of a disability than that they have no property. I certainly understand Baron's overall point: that lack of property is also a lack of power. I wonder about using some other novels, like Harriet Beecher Stowe's Uncle Tom's Cabin, here as well. Stowe certainly drove home well the implications of being property.
As Baron says at pages 24-25,
Contemporary property law is nominallly committed to the proposition that one's status--particularly one's status as an owner of property--should not determine one's position in society. But the reality of that commitment can be questioned. For the fact is that those who own very little property--the homeless, for example, or the extremely poor--remain in a position of substantial legal and social vulnerability. . . . [R]ecent scholarship in the property area, however well-intentioned, has only further obfuscated and obscured the freedom-limiting attributes of "no property."
Much to wonder about here. I'd like to hear a debate between Professor Baron and someone who emphasizes the freedom-enhancing nature of property, . . . like maybe Richard Pipes. His book Property and Freedom was also published by Random House (the publishers of Valerie Martin's Property). Would be a fine clash of competing visions, I should think.
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