On Private Property. Finding Common Ground on the Ownership of Land . 2007 . Beacon Press , Boston , MA . 207 ( xxi + 186 ) pp. $24.95 (hardcover) . ISBN 978-0-8070-4416-2 .
Ecologists, perhaps more than other natural scientists, have a number of good reasons to come to grips with the idea of ownership. Social arrangements such as “ownership” of the natural world are human constructs that impose a template—an artificial superstructure—on top of the world that interests ecologists. This template, because of the human action it authorizes, sanctions, encourages, prohibits, and ignores, provides the background from which contemporary ecology cannot escape. All of the land, and much of the sea, is owned by someone (despite Garrett Hardin's claims to the contrary). To be more precise about it, there are ownership claims that cover all land—even some that lies beneath the oceans—and much of the Earth covered by the oceans. It has not always been this way. In early days, people belonged to the land. As markets emerged, it became increasingly important for land to belong to people. Karl Polanyi reminded us that this process gave us land as a “fictitious commodity” (Polanyi 1957). It is a fictitious commodity because land, unlike widgets, was always here and had to be commoditized in a conscious act driven by the apparent need to exert ever more control over it. And so land is now understood to represent the commodity fiction.
While on the subject of fiction, it is a good time to introduce John Locke. Locke, advisor to one of the largest landowners in all of England—the First Earl of Shaftes-bury—was at pains to explain the good effects to emerge from ownership. We might think of this as rationalizing possessive individualism with respect to land. But Locke, though grateful for his upkeep, was no fool. He understood that ownership would be socially tenuous if those who came late to the feast found that all of the good stuff had already been spoken for. And his wealthy benefactor had spoken for a great deal of it indeed. Immanuel Kant improved on Locke by situating ownership where it correctly belonged—in the public realm. To be exact, what people “own” depends on what others in the community (nation–state) say they own, not what they say they own. Lockean claims of “this is mine—stay off” were shown to be flawed and in need of replacement by “yes, that is yours—you may stay.” Notice that Lockean residues persist in current struggles to protect endangered species and threatened habitats. Those who own land do not easily abandon the deceit of “this is mine and I shall do with it as I please.”
Freyfogle's On Private Property has been preceded by a number of thoughtful works that establish him as one of the more insightful commentators on the idea of ownership and “property.” The trouble here is that the word property has come to imply a piece of land (e.g., a person bought some property), when in fact one must see property as a claim to a stream of benefits running into the future—said benefits perhaps arising from land, but also arising from the holding of Class B shares in a company, from control over a trust fund established in your behalf, or from the favorable circumstances bestowed on you by the Patent and Trademark Office. Property rights are the constellation of rights and duties associated with the future stream of beneficial effects. It should be very clear that all those rights and duties are bestowed on the presumption at the time of bestowal that the larger social good shall thereby be well served. That presumption must be justified by the reasons that can be advanced to support it and by the ability of those reasons, at the time, to trump contrary presumptions (Bromley 2006).
The strength of Freyfogle is that he works through a number of edifying examples that concern the basic question: Whose land is it, anyway? And the answers to these questions in the varying settings and circumstances explored by the author are found to require serious thought. The so-called property rights crowd—known as the wise-use movement in environmental struggles—is quite sure that it knows the answer to that question. The land belongs to the current owner. Well, not exactly. Land belongs to the party that is able to make the most compelling claim to ownership at the time a contrary claim arises. We see that ratification of ownership comes down to a continual need to revisit the nature and degree of social protection afforded to different interests differentially situated. To own is to control more than land—it is to control what others may and may not do. As Henry George liked to point out, put 100 men on an island and make 1 of them the owner of all of the land, or of the other 99 men, and it would make no difference to him or to them.
The subtitle of the book is Finding Common Ground on the Ownership of Land and Freyfogle is very good at this endeavor. He has a lawyer's eye for detail, without the associated penchant for legal arcania. He is smart to move the discussion away from the U.S. Constitution and into a discussion of the idea of property (p. 67)—what Kant called noumena. As with debates over gun control, far too much debate is centered on what the Constitution is alleged to imply, whereas there is far too little discussion of the very concept itself. The property rights advocates are guilty of gross essentialism—insisting that there is something knowable and inviolate about property rights. Freyfogle reveals the incoherence of this approach.
One of the delights here is Freyfogle's observation that groups who purchase easements and make other financial concessions to induce owners to modify their behavior are thereby guilty of legitimizing the very antisocial behavior such groups seek to alter. Assorted land trusts (and The Nature Conservancy) no doubt bring about a number of socially beneficial land-use outcomes. But their actions also reinforce the perverse idea that landowners may do as they wish with respect to land, and if they are to be induced to do otherwise, they must be compensated. The free-market environmentalists—while ignoring the logical contradiction in their moniker—are pleased to insist that this is the way conservation ought to be done. Because these groups are displeased by government action of any sort, it is to their distinct liking that private philanthropy can be used to insist that government is not necessary—let “the market” work it out. The problem, of course, in addition to that identified by Freyfogle, is that on this tack one will only get as much conservation as the philanthropic sector decides is needed. What if those responsible for private philanthropy suddenly decide that there has been enough conservation? Since when should one trust the spending habits of the economic and social elite as accurate and plausible manifestations of the larger public interest? What if their preferences gradually drift away from conservation and become rather more focused on grand estates in Tuscany or Umbria? What then of Red-cockaded Woodpeckers and wetlands?
Eric Freyfogle has given us yet another reason to be pleased with the nature and content of his scholarly program.