----- Original Message ----- From: "Charles Brown" <[EMAIL PROTECTED]>
> CB: Hello Jim. Here's my take on private property. I would define it likes Engels in _The Origin of the Family, Private Property and the State_ . It is not defined by it being alienable, or saleable as you put it. That is the definition of bourgeois, or capitalist private property- that it is alienable, alienable in the market. In feudalism, some forms of private property were "inalienable" ( "Inalienable rights" used this analogy in the bourgeois revolution). The lord's and church's lands were inalienable , as you say, but that does not mean they were not private property in the general sense that Engels uses it in the Origin. Private property means having some enforceable powers and control over the property, regardless of whether you can alienate it from yourself for cash. Of course, market sales were a much smaller part of the feudal mode of production in general, than the bourgeois mode. The control and power the feudal lords and bishops had was, of course, the right ! > to a portion of the products from the land. ======================================== < http://www.openicon.com/retreat/property1.html > Property and Sovereignty[1] By Morris R. Cohen >From the Book Law and Social Order (Harcourt, Brace and Co., 1933) [snip] The distinction between property and sovereignty is generally identified with the Roman discrimination between dominium, the rule over things by the individual, and imperium, the rule over all individuals by the prince. Like other Roman distinctions, this has been regarded as absolutely fixed in the nature of things. But early Teutonic law-the law of the Anglo-Saxons, Franks, Visigoths, Lombards, and other tribes-makes no such distinction; and the state long continued to be the prince's estate, so that even in the eighteenth century the Prince of Hesse could sell his subjects as soldiers to the King of England. The essence of feudal law-a system not confined to medieval Europe-is the inseparable connection between land tenure and personal homage involving often rather menial services on the part of the tenant and always genuine sovereignty over the tenant by the landlord. [snip] Well, right before our eyes the Law of Property Act of 1925 is sweeping away substantial remains of the complicated feudal land laws of England, by abolishing the difference between the descent of real and that of personal property, and by abolishing all legal (though not equitable) estates intermediate between leaseholds and fees simple absolute. These remains of feudalism have not been mere vestiges. They have played an important part in the national life of England. Their absurdities and indefensible abuses were pilloried with characteristic wit and learning by the peerless Maitland. The same thing had been done most judiciously by Joshua Williams, the teacher of several generations of English lawyers brought up on the seventeen editions of his great text-book on real property law. Yet these and similar efforts made no impression on the actual law. What these great men did not see with sufficient clearness was that back of the complicated law of settlement, fee-tail, copyhold estates, of the heir-at-law, of the postponement of women, and other feudal incidents, there was a great and well-founded fear that by simplifying and modernizing the real property law of England the land might become more marketable. Once land becomes fully marketable it can no longer be counted on to remain in the hands of the landed aristocratic families; and this means the passing of their political power and the end of their control over the destinies of the British Empire. For if American experience has demonstrated anything, it is that the continued leadership by great families cannot be as well founded on a money as on a land economy. The same kind of talent that enables Jay Gould to acquire dominion over certain railroads enables Mr. Harriman to take it away from his sons. >From the point of view of an established land economy, a money economy thus seems a state of perpetual war instead of a social order where son succeeds father. The motto that a career should be open to talent thus seems a justification of anarchy, just as the election of rulers (kings or priests) seems an anarchic procedure to those used to the regular succession of father by son. [snip] As the terms "medievalism" and "feudalism" have become with us terms of opprobrium, we are apt to think that only unenlightened selfishness has until recently prevented English land law from cutting its medieval moorings and embarking on the sea of purely money or commercial economy. This light-hearted judgment, however, may be somewhat sobered by reflection on a second recent event-the Supreme Court decision On the Minimum Wage Law.[5] Without passing judgment at this point on the soundness of the reasoning whereby the majority reached its decision, the result may still fairly be characterized as a high-water mark of law in a purely money or commercial economy. For by that decision private monetary interests receive precedence over the sovereign duty of the state to maintain decent standards of living. The state, which has an undisputed right to prohibit contracts against public morals or public policy, is here declared to have no right to prohibit contracts under which many receive wages less than the minimum of subsistence, so that if they are not the objects of humiliating public or private charity, they become centres of the physical and moral evils that result from systematic underfeeding and degraded standards of life. Now I do not wish here to argue the merits or demerits of the minimum wage decision. Much less am I concerned with any quixotic attempt to urge England to go back to medievalism. But the two events together show in strong relief how recent and in the main exceptional is the extreme position of the laissez faire doctrine, which, according to the insinuation of Justice Holmes, has led the Supreme Court to read Herbert Spencer's extreme individualism into the Fourteenth Amendment, and according to others, has enacted Cain's motto, "Am I my brother's keeper?" as the supreme law of industry. Dean Pound has shown[6] that in making a property right out of the freedom to contract, the Supreme Court has stretched the meaning of the term "property" to include what it has never before signified in the law or jurisprudence of any civilized country. But whether this extension is justified or not, it certainly means the passing of a certain domain of sovereignty from the state to the private employer of labour, who now has the absolute right to discharge and threaten to discharge any employee who wants to join a trade-union, and the absolute right to pay a wage that is injurious to a basic social interest. It may be that economic forces will themselves correct the abuse which the Supreme Court does not allow the state to remove directly, that economic forces will eliminate parasitic industries which do not pay the minimum of subsistence, because such industries are not as economically efficient and profitable as those which pay higher wages. It was similarly argued that slavery was bound to disappear on account of its economic inefficiency. Meanwhile, however, the sovereignty of the state is limited by the manner in which the courts interpret the term "property" in the Fifth and Fourteenth Amendments to the Federal Constitution and in the bills of rights in our state constitutions. This makes it imperative for us to consider the nature of private property with reference to the sovereign power of the state to look after the general welfare. A dispassionate scientific study of this requires an examination of the nature of property, its justification, and the ultimate meaning of the policies based on it. [snip] The character of property as sovereign power compelling service and obedience may be obscured for us in a commercial economy by the fiction of the so-called labour contract as a free bargain and by the frequency with which service is rendered indirectly through a money payment. But not only is there actually little freedom to bargain on the part of the steel-worker or miner who needs a job, but in some cases the medieval subject had as much power to bargain when he accepted the sovereignty of his lord. Today I do not directly serve my landlord if I wish to live in the city with a roof over my head, but I must work for others to pay him rent with which he obtains the personal services of others. The money needed for purchasing things must for the vast majority be acquired by hard labour and disagreeable service to those to whom the law has accorded dominion over the things necessary for subsistence. [snip]
