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Anthony de Jasay: Property and its Enemies, Part II: Is Ownership a Myth?, in: The Library of Economics and Liberty, August 4, 2003

The root principle that gives ethical coherence to the origins of the rule system governing ownership is 'finders keepers', a special case of the more general coordinating principle of 'first come first served'. Both are conventions in the strict meaning of the term, a fact of some importance to which I will revert presently. As opposed to the Lockean proviso which implies that the finder of a resource deprives the rest of mankind of the opportunity of finding it, and owes a debt to them unless equally good opportunities subsist, 'finders keepers' entails that though others might have found the resource, it is the finder who did and he is not, for that reason, under any obligation to the non-finders.

Many 'enemies of property' prefer to regard it as a creature of the political authority in society and have little interest in its extrapolitical legitimacy. Some choose to call the belief in such legitimacy a mere `myth'.

However, the 'myth' is more than just a sense of when it is the case that a thing of value is 'mine' or 'thine' and what prohibitions and what liberties constitute the meaning of these terms. It is also an explanation, a theory based on rational choice of behaviour `strategies', of why these terms have come to mean what they do. The theory is that of Hume . It identifies the mechanism of conventions as a determinant of group behaviour, and as such anticipates what is today the last word in academic thinking about non-imposed social order.

Hume dismisses in a footnote (505) Locke's somewhat futile idea of 'mixing' one's labour with an external resource to appropriate it, and pays no attention to 'enough and as good left for others’. For him, initial exclusion is a matter of fact, it happens by 'first occupation'. At that point, society is formed by the 'first assignment' to the 'present possessor'. The morality of these steps is not at issue.
From then on, voluntary transactions, sale, gift and bequest serve as the instruments of the 'transference by consent' and the distribution of property. He makes it very explicit that consent is sufficient warrant: "fitness and suitableness ought never to enter into the distributing of the properties of mankind" (514). Any further testing of the distribution for ethical and efficiency desiderata would be out of place. It suffices that it results from the exercise of the owners' freedoms. As such, the distribution of property is the expression of justice.

Hume's genius and originality come into play from this point onward. For, as he engagingly puts it, 'social disturbance' mainly arises from 'the looseness and easy transition' of goods people covet (489). How, then, to explain the 'stability of possession' and hence of order? The standard answer handed down by Hobbes and repeated ever since, is that the state enforces the law, and this indeed is why it is indispensable. Hume instead finds in this situation the elements that give rise to a spontaneous convention. Behaviour about one another's property can be coordinated upon several alternative equilibria. One, mutual respect, has prosperity as its payoff, another, mutual disrespect, theft, violence and extortion, produces a 'solitary and forlorn condition' (489). Nearly everyone expects nearly everyone else to respect property, hence the superior equilibrium of mutual respect will take hold. Being an equilibrium, it will be self-enforcing. Hume does not explicitly deal with the deterrence of deviation, but it is not inconsistent with his theory of this convention that punishing the deviants is part of the tacitly agreed behaviour. As a matter of empirical fact, this was the case until enforcement by the state gradually crowded out conventional enforcement. With the hindsight of modern game theory, all this is straightforward enough. In the 18th century, it was way ahead of its time and it was and has largely remained ignored.

From the existence of the convention, Hume deduces that ownership does not depend on the will of the state but, together with the binding force of promises, is logically prior to it. Rules will emerge before there is a special rule-maker and enforcer. In his words that can never be quoted often enough, `...the stability of possession, its translation by consent, and the performance of promises. These are ... antecedent to government' (541).

However, contradicting Hume head-on while betraying no awareness of it, Murphy and Nagel state: "... there are no property rights antecedent to the tax system"(74). Their book runs in terms of flows of income rather than stocks of resources, but this does not impinge on essentials. In most respects it is a run-of-the-mill work about 'distributive' justice and tax policy, no better and no worse than dozens of similar ones written in the American 'liberal' tradition on the unspoken assumption that social choice is not only de facto, but also morally entitled to choose its own scope and everything it chooses within it is chosen justly. In one respect, however, Murphy and Nagel stand out: it is in their curious attempt to turn the concept of convention into a weapon against property, and to interpret convention in such a way that would justify whichever way society, and more directly the legislator, chooses to distribute it.

The attempt opens with the puzzling declaration that property is a 'legal convention' (8): 'Legal', whatever else it may be thought to mean, most also mean 'in accordance with the law'. Law is by definition a product of conscious decisions by duly constituted authority. This is true both for statute law and for the judge-made law which rests on precedent. Since the law is the same for everyone, a single decision by the legislature or the judiciary is decisive throughout the jurisdiction. The decision is enforced by the coercive apparatus of the state. In nearly complete contrast, a convention is by definition a spontaneously emerging behavioural regularity that spreads and solidifies. It is not a matter of any authority's decision. Nor is it explicit agreement, though some conventions can be interpreted as tacit contracts. Some conventions are self-enforcing in the most straightforward sense, others incorporate their own internal enforcement rules as part of the equilibrium strategy (e.g. 'punish the deviant, and do not deviate, for you may be punished'). Neither type depends on an external enforcing apparatus maintained by taxation.

A 'legal convention', then, is a contradiction in terms unless one or both words are taken in a loose, free-and-easy manner. One wonders whether such usage serves the authors well. Their primary concern seems to be to convey that pre-tax income is just a bookkeeping fiction, it is not anything real; what is really yours is determined by the 'legal convention'. In plain language, we would just say that there are laws requiring government to protect property from all except from itself, and other laws empowering it to take property (by way of income and other taxation) to finance expenditure that yet other laws direct it to incur. Barring the most improbable fluke, taxation is redistributive in the raising of revenue, in the spending of it, or probably both, and this is true whether redistribution is a deliberate objective or not. It is a truism that post-tax incomes are a function of these laws and of many other things. Indeed, we may add that so are pre-tax incomes as well. Yet it does not follow that income and property would not belong to anyone in particular if these laws did not exist. Nor does it follow that calling the arrangement a 'legal convention' establishes its legitimacy.

There is a suggestion throughout that if the tax laws are equitable, properly evaluated and create the right (and not wrong!) balance between freedom, 'distributive' justice (a pleonasm?), economic efficiency, equality and anything else, they will be consensual and provide the "framework ... all find morally comfortable" (42).

Lest this moral comfort be troubled by foolish notions of property, the 'myth of ownership' must be dispelled. What people have in mind when they say 'mine' and 'thine'; the tacit convention Hume has identified and that makes property 'antecedent to government', is an "illusion ... that arises whenever the conventions governing a practice are so pervasive and so deeply buried that they become invisible ... [and] seem natural although we know they are highly arbitrary" (74). But we know nothing of the sort.

A little knowledge is often worse than none. There is indeed a class of conventions that are 'arbitrary' (though the word is hardly right) in the sense that an alternative convention was potentially available that could have solved the coordination problem on band equally well. 'All drive on the left' coordinates traffic no worse than all 'drive on the right' would do, and the reason why one establishes itself rather than the other may be called arbitrary, (or more precisely, unrelated to the convention's merits). But some of the most fundamental spontaneous conventions do not belong to this class. The convention of not killing peaceful strangers has no equivalent in a convention to kill them. The latter is less efficient and has indeed proved to be (evolutionarily) unstable, for it has disappeared in most parts of the world. The same is true of the other conventions against torts. Everywhere, the tort-feasor is a deviant who breaches the established convention. Nowhere and never has such conduct passed for the norm, for a potential alternative.

Closer to the Humean convention of 'stable possession' that we are invited to regard as an illusion, there is nothing 'arbitrary' about 'first come, first served'. 'Last come, first served', or some similar behaviour pattern, would be less efficient and could hardly have established itself. 'Finders share it all round' could not have taken the place of 'finders keepers'.

The 'legal convention' Murphy and Nagel put forward is not a convention even in a broad, let alone in a technical sense, since it entails fiscal decisions made by some and imposed on others, and its enforcement is not undertaken spontaneously. However it makes little odds what it is. For if 'mere conventions' are really arbitrary, then the 'legal' one is arbitrary, too, and is no better a source of legitimacy than the Humean one. If conventions; at least those relevant to property, are not arbitrary, then ownership is not a 'myth'.