Property & Privilege

One of the more amusing, if nonetheless unpleasant aspects of the current financial meltdown is the speed with which ardent free marketeers have rounded on the regulatory authorities for not being tough enough with them. Regulation that inhibits profits is bad, lack of regulation that fails to prevent losses is equally bad. Regulation, for its beneficiaries, is shamelessly a one-way street. Like the school bully out of his depth, the City of London is now running howling to teacher.

The so-called libertarians have got it badly wrong. Of course, there will ever be the political masochists who accept whatever consequences their ideology requires of them, but without practical solutions to real world issues they have no audience. Their gods have failed us and we no longer hearken to their sermons. It was always a cheek to argue for the end of State intervention when without State intervention to uphold the sanctity of property and contract their economic model lacked its most basic footing. Without police there is no property and without courts there is no contract. These things require a State and a democratic State will not confine itself to meeting the demands of the rich alone.

The libertarians’ greatest lie has been to link personal liberty and property, arguing unfettered property rights to be the true guarantee of democracy. History shows this to be false. Victorian Britain – before the secret ballot – saw countless cases of tenants evicted for voting against their landlord’s wishes. That was his right as landlord, but what was his right to be landlord at all? Libertarians stop the clock at now, entrenching all past gains, however made. Justice can go hang.

As a general rule, human rights begin at birth and end at death. Property rights have no such mortality. They pass onwards from generation to generation, but the origins of the chain of transmission are often deliberately obscured. Title ultimately derives from an act of conquest. Saxon dispossessed Celt, Norman dispossessed Saxon. And every honest transaction today rests on that tainted foundation. Pierre-Joseph Proudhon’s much-abused quip that property is theft is not far from the truth.

If property is not to be theft then it must be found a rightful possessor. And in that judgement, use value has always outweighed exchange value. Those who wish to use the land take precedence over those who wish to hoard it. That is the basis of the common law doctrine of adverse possession. A squatter’s rights have long trumped those of the paper owner who made no effort to enforce his claim. Sadly, the onward march of statutory land registration is biting deep into this ancient wisdom, so that more and more we are ‘bound in with shame, with inky blots, and rotten parchment bonds’. A fresh approach is due.

To prefer the claim of the homeless to that of the idle land speculator is not to condone the destruction of Wessex by endless population growth. Development should be controlled by the community through planning laws, because in our over-crowded region the days of putting up a shack on the common are long gone. But when farmland is sacrificed because existing homes lie empty, for no other reason than that the owner wants to keep them that way, we have a society with very warped priorities indeed. Perhaps the way forward is to give parish and town councils the right to oversee vacant land and buildings on their patch, and the power to force a sale by auction wherever they are not satisfied with the owner’s explanation. Public bodies should be as subject to this power of scrutiny as anyone else. In truth, land is never ‘owned’; all land is held as an estate under the Crown. Property is a privilege, not a right, and it should not be permissible to abuse that privilege.

The re-deification of private rights in land is one aspect of a wider loss of reality by society at large. Because our economy no longer depends on gathering, growing or making things, business has created class after class of virtual assets, which it then insists that the law should protect against anyone else wishing to do the same. Only with the State’s connivance can profit be made out of denying access to what was once free. ‘Intellectual property rights’ are the new enclosures. They do not belong in this world but in that of Alice in Wonderland. How else can one begin to characterise attempts by the U.S. Government to patent the DNA of indigenous peoples?

Copyright is the privatisation of censorship. It restricts the flow of information in a free society, slowing down cultural development. It outlaws the labour of those who do the copying, while rewarding those who have done nothing since the initial publication of their work. Nothing has been stolen but a figment of the imagination. The record company still has the master recording. The publisher still has the author’s manuscript. These are the only true assets in the industry of make-believe. There will always be a market for the genuine article, endorsed by its creator, but those who don’t want their work copied shouldn’t publish. While imitation may be the sincerest form of flattery, no-one should expect to be paid for being flattered. The law should protect the buyer from fake goods they don’t want, not from fake goods they do want.

Copyright is a paradise for lawyers. How much copying is too much copying? Dan Brown’s The Da Vinci Code would have been inconceivable without the work of Baigent, Leigh and Lincoln in The Holy Blood & the Holy Grail. Yet he was cleared of plagiarism because they had claimed their own, equally imaginative work as fact. Wessex-born author J.K. Rowling is estimated to be the 12th richest woman in Britain, worth £560 million. Could Harry Potter have been created without the use of the English language in which the books are written? Or without reference to the Western magical tradition? No? So can society sue JKR for its share? Apparently not. If we want continuing creativity we should remove the cotton wool from our writers, musicians, film-makers and software engineers. Why do more work if you can live off past royalties for ever and a day? Of course, their fortunes would be considerably smaller. But a world with fewer millionaire celebrities would be a world with a more balanced sense of values. Not to mention a more realistic view of the contribution any individual or corporation can actually make to the culture with which they work.

The world of money is a house of (plastic) cards. The State, while taking all the poison thrown at it, is happy to sanction the whole range of legal fictions out of which money is ‘made’ at the public’s expense. Fractional reserve banking. Limited liability. And guaranteed property rights, even in things that don’t otherwise exist. Isn’t it time we got real and left Wonderland behind?

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