Guardians and Private Property: Domain Versus Dominion

Rousseau thought humanity’s downfall began not with Adam and Eve and a bite from that fabled apple, but with their descendants’ claim that people could somehow own the land that produced the tree.

Voltaire, in particular, didn’t like this critique of one of our oldest and most cherished institutions. He asked rhetorically if farmers who sow, reap, and protect their land are somehow less entitled to its fruit than neighbors who snooze under a branch then eat when an apple falls.14 Adam Smith believed our natural acquisitiveness, though full of risks, was like a “divine hand” that shaped social progress while creating wealth. Jeremy Bentham agreed, noting that the happiness of all can result only through the pursuit of happiness by individuals: a crowd can’t feel good about itself when too many of its members feel bad.

All of these fine thinkers believed that without individual rights to property and legal assurance that we can enjoy the product of our labor (including its surplus), citizens would have no incentive to work, save, and invest. John Locke was adamant on this last point, demolishing two of the most potent arguments used for centuries against full-blown capitalism: namely, that profit was immoral because it impoverished others; and that accumulating wealth was inefficient because it prevented goods–including money–from being used by those who needed it more. Rejecting the first point, Locke said that landlords who enclose and cultivate land invariably increase its yield, creating more–not less–resources for the community. As to the second, he argued that by converting surplus goods to money, which cannot spoil, wealthy people actually minimize waste and help others become wealthy by investing in new enterprises.15

So who was right: Rousseau and his followers, from ascetic monks to Karl Marx, who saw individual guardianship over real property as a real vice; or were Locke, Bentham, Smith, and Voltaire aware of something these “communitarians” had missed?

If we view property–not just real estate, but any significant possession–as “territory” in the animal sense, then subtler arguments about “efficiency” and “waste” fade into the background and our instinct for acquisition comes into clearer focus. In nature, territory means security: a safe place to hunt, graze, and reproduce. One cannot acquire and exercise other forms of power (let alone achieve more exalted goals in art, literature, and philosophy), if one feels insecure. Further, human beings see benefits in any sort of surplus–not just satisfaction of our personal wants and needs, but a force that unifies and strengthens the community. Shortages, we know, set people against each other and tear communities apart. And spending money is a social activity involving buyers and sellers, producers and distributors, that reveals the status and prestige of all involved. Wealth in any form is nothing more than a potential to spend, and both wealthy people and their stakeholders (heirs, employees, suppliers, venture partners, tax collectors, and so on) use many of their waking hours planning how and when such spending, including investing, should take place. Just as our ancestors depended on game-rich forests and fruited plains to keep their tribes safe and prosperous, so we depend on a growing stock of money–and on economically significant legal rights–for our security. Today, the political economy, that confluence between the regime of capital and the regime of politics we call a modern liberal capitalist republic, is the “natural” environment we must master in order to survive.

Because of that, all civilized societies implicitly or explicitly link property to power. In 1787, Noah Webster went so far as to say, “In what then does real power consist? The answer is short and plain–in property... A general and tolerably equal distribution of landed property is the whole basis of national freedom.”16 This connection was especially true in feudal and Renaissance societies, where political stability often depended on alliances among landed families and their cooperation with the minor nobility, tradesmen, merchants, and peasants who cleared, improved, worked, and defended new territory. Together, their efforts converted patchworks of farms and villages into networks of grand estates and cities served by roads, bridges, canals, aqueducts, and harbors–the infrastructure that tangibly linked individual well-being to the common good.

Large-scale capitalism made these long-established, cooperative relationships more efficient and created new forms of wealth, new guardian hierarchies, and new ways for individuals of all types, including non-propertied citizens, to advance their interests. But the underlying value of property–that sense of territory and our primeval attachment to it, including our necessary and useful feelings of patriotism toward our geographically defined nation-state–was the glue that held everything together. It was also a bomb that threatened, at regular intervals, to blow everything apart.

Just as political guardians could expropriate land and tax the wealth it produced under the principle of sovereignty, so did economic guardians expropriate the surplus generated by labor and trade under the rubric of traditional property rights. The conflicting moral claims to that surplus–who should control it: the tribe or the tribal chieftain? the provider of the tools or the one who uses them?–has been hotly debated ever since.

One way guardians accommodated these differences, though never completely resolving them, was to separate the benefits of property from its ownership. After all, land in any historical era, under any form of government, must be worked by somebody; and because citizens exploiting the land must be induced to labor upon it–often under bitter or risky circumstances—even the most distant and selfish landlords found it wise to grant certain benefits and prerogatives to those who actually occupied and developed the land. Thus, the clear, theoretical distinctions Rousseau, Voltaire, Smith, Locke, and others made about the morality of land ownership became muddied in actual practice.

Laws protecting rights in property–intended originally as an accommodation between political and economic guardians–later came to protect the interests of more modest and even non-propertied citizens. Indeed, as Ronald Dworkin observes, the U.S. Constitution intentionally strengthened the rights of private property-owners specifically to counterbalance the power of the state and reduce, as Madison put it, the “dangers of faction.”17 Unfortunately, those factions formed anyway, and property rights (and the other rights derived from them) usually were, and still are, at the center of their conflicts.

Among the earliest beneficiaries of these “fictitious” property rights were non-landed gentry, such as merchants, bankers, and investors who, although lacking the huge agricultural estates that characterized the feudal nobility, created great wealth by exploiting their knowledge of technology, trade, and finance. This minor gentry gradually became the professional and middle class that informed much of our contemporary, consumer culture. With this expanding base of economic guardians, the profit motive–the will to increase and expropriate surplus–received new moral justification and increased political clout. Profit was seen as society’s, and God’s, reward for individuals who were thrifty and satisfied their fellow citizens’ wants and needs. It was also fair compensation for investors who risked money by subsidizing new ventures; and the riskier the venture, the greater the reward they deserved.

Without doubt, there is a compelling logic behind this. If income doesn’t exceed expenses, there is no profit; therefore producers are motivated to preserve assets and keep waste to a minimum–although they are also motivated to charge the highest prices they can. This ability to decouple price from cost, to continue charging high prices even when costs and risks have diminished, has caused no end of problems in developed societies. It did not take much time for political and economic guardians to notice that by cooperating with each other, they could manipulate markets, exclude competition, raise and sustain high prices, and reduce their dependence on thrift. Proprietors who founded big businesses, often experts in certain fields of production, discovered they could hire professional managers to “extract” surplus from material and human resources and thereby remove themselves from the cares and commitments of day-to-day guardianship. A nominal owner could now enjoy all the benefits of property without becoming embroiled in, or too empathetic with, the practical or moral problems of production. For example, the fragmenting of tasks that boosted efficiency by keeping workers focused on one part of the overall job, wound up limiting employees’ interest in the company and their pride in the final product. Similarly, managers who monopolized the planning function taught citizen-workers to leave agenda-setting to others: an anti-democratic reflex political guardians were happy to encourage. Even worse, these developments led economic guardians to view employees as interchangeable parts in the vast machinery of production; and when technology or market conditions changed, disposable parts as well.

In the same vein, political guardians reconciled their often-conflicting duties to both worker-dependents and owner-guardians by sanctifying profit–which, after all, was the government’s main source of revenue, through taxation. This led to a greater symbiosis between political and economic guardians, so that by the late nineteenth and early twentieth centuries, the regime of capital and the regime of politics had become virtually indistinguishable.18

However, predictable profits depend on public order, and there were practical limits to the accommodations political guardians could offer their economic counterparts. Disputes arose over what, exactly, constituted labor exploitation and market manipulation. Worker-dependents became more antagonistic and wary and sought relief by appealing to political guardians. Unions formed and lawmakers found themselves obliged to create whole new volumes of law aimed at solving problems that rarely existed in pre-capitalist days or had been handled through the surrogate kinships of paternalistic firms and landlords. Goodwill and community spirit–even common sense–diminished as aggrieved workers and managers, capitalists and politicians, became more confrontational and litigious. In both input (labor) and output (commodity) markets, dog-eat-dog competition, economic predation, exploitation, and even sabotage became the order of the day.

Over time, these adversarial relationships created a division of responsibility, as well as a division of labor, in the political economy. As profit needed less moral justification (legality being the only real criterion), the burden of enforcing moral behavior shifted away from private citizens, including property owners–the “lord of the manor” being the traditional arbiter of village mores–and fell to political guardians. Under pressure from constituents and being excused from the risks of economic Darwinism, political guardians began pursing a more openly moral agenda. This didn’t mean that public officials became more ethical or that better laws necessarily passed only that politicians had to appear to be addressing the worst abuses and immoralities of the marketplace in order to gain and keep their offices.

Of course, we must not conclude from this that capitalism and mass production are inherently evil or less democratic than other forms of political economy. Pre-industrial, cottage industries could be as chauvinistic, paternalistic, and exploitative (especially to women and children) as more centralized forms of production. The real villain in the industrial revolution wasn’t manufacturing technology, or even the amoral wave of Tayloresque “human engineering” that followed it, but the extension of feudal property laws into new, non-feudal relationships that turned tenant-farmers into proletarians and successful proprietors into quasi public guardians with considerable–and usually non-consensual–social power.

Recall that territory–a simple geographic boundary–is used by all states to define their citizenship. With citizenship come specific burdens, such as involuntary taxation and compulsory military service, among others; as well as certain rights and benefits. Moral problems arise, though, when the specific parcel of land defining citizenship and creating those obligations (in other words, a citizen’s domicile), is owned by someone else: not the citizen, but a private guardian, a landlord, or a corporation. What is the moral justification, critics ask, for compelling renters to pay their landlord’s property-related expenses (such as mortgages and taxes) and risk their lives defending that property from harm (via conscription) while those same renters share few or none of the political and economic benefits of property guardianship?

This may seem like a trivial philosophical question, but the problem of landless, and often alienated, citizens has been a perpetual issue throughout history; and modern liberal capitalist representative democracies have done little–other than promote the distraction of consumerism and offer a few token reforms (in America, these include the G.I. Bill, FHA, and a mortgage aftermarket that facilitates home loans)–to address it.

Ancient societies like Greece and Rome were at least honest, if un-egalitarian, about the problem of citizen-tenants. They simply declared landless people to be second-class citizens and assigned them a different set of civil rights and obligations, distinguishing legally and socially among different levels of wealth. For example, in the early Roman Republic, only landowners could serve in the army, since political guardians figured they had the most to lose in war. When these societies turned imperial, military ranks were opened to non-propertied citizens who enlisted with the hope of earning wealth (in the form of booty) and a grant of farmland promised by the state. Equality in those days wasn’t a right: it was a reward that had to be earned.

Today, we offer our landless citizens no such options. Even renters who are veterans, discharged soldiers who risked life and limb defending national interests receive only modest discounts on home financing: their chance to become, in one small way, property guardians themselves. The resulting, de facto second-class status of landless citizens is potentially so dangerous and destabilizing that guardians no longer even suggest that land ownership and citizenship might somehow be connected. Instead, non-guardian renters are placated with surrogate rights derived from the property rights of guardians, typically in the form of “consumer rights” and legislation giving designated groups special protections, leaving the unique benefits of property owners relatively undisturbed. This is certainly an improvement over the bad old days of lordly estates and tenant-farmers’ rights in common (although the king and parliament, not the people, still determined which land was public); but it’s a far cry from the political economy self-governing people deserve.

In any event, in most states, residents are considered citizens–and thereby subject to all its laws, democratically made or not–when they are born into its territory, or to parents who were, or when they reside within its boundaries for a certain length of time and pass other tests for naturalization. Yet these citizens have no reciprocal claim against the land, or its yield, that created this obligation; nor do they have any particular, personal ties to their fellow citizens except their obedience to the rules imposed on them by guardians. This clause in the modern social contract is, by any objective standard, adhesive; and, if it wasn’t for the principle of sovereignty, it would be unenforceable in any court. To the degree that practical power in such states resides with guardians, not the demos, this one-way arrangement would seem to be a misuse of the sovereign principle, which in modern times assumes that ultimate power rests with the people, not their agents. To the extent that economic and political guardians abuse this power, it is tyrannical as well.

Of course, some will argue that the state compensates for this ancient inequity by providing every citizen, landed or not, with police, fire, and military protection, a justice system, an infrastructure of roads and sewers, and so on. But on a case-by-case basis (which is the only way contracts–even social contracts–can be evaluated), state guardians often exempt themselves from the same responsibilities they demand of private citizens. For example, congressional representatives exclude themselves from Social Security taxation while requiring it from everyone else; and while police offer protection to the general public, they may deny it to any particular person except under special circumstances, such as witness protection and police bodyguards for public officials. (Call 911 if you’re in trouble, and the police will eventually respond, but neither the city nor its agents are responsible if you are victimized by the time they get there.) And who can deny that the courts, including the criminal justice system, serve best those who are best connected? Even in the military, rent-paying Americans are far more likely to find themselves defending a landlord’s property from a domestic riot, or advancing corporate guardians’ interests abroad, than protecting their own family and neighbors from rapacious foreign invaders.

The point is, rent has always been a symbol for the alienation of landless citizens: a barrier between a large class of people and the state that claims their loyalty, lives, and taxes. It is a special problem for any society that espouses consent and democratic ideals while tolerating guardian authority.

This brings us back to another principle laid down by America’s founders and articulated succinctly by John Jay: “The people who own the country ought to govern it.” The question is: in a democracy of any kind, who rightfully owns the country?

  1. 14. Havens, G. R. Voltaire’s Marginalia on the Pages of Rousseau. New York: B. Franklin. 1971.
  2. 15. Heilbroner, Nature and Logic of Capitalism. 112-113.
  3. 16. Bailyn. The Debate on the Constitution, Part 1. 155, 158.
  4. 17. Dworkin, Ronald. Freedom’s Law: The Moral Reading of the American Constitution. Cambridge, Mass.: Harvard University Press. 1996.
  5. 18. Heilbroner. Nature and Logic.

Back to Top