On Property : 2 : Justice

In part 1, we looked at Violence, Trade and Law, with regard to Property.

The Origin of Property

In 1797, Sade wrote “Tracing the right of property back to its source, one infallibly arrives at usurpation. However, theft is only punished because it violates the right of property; but this right is itself nothing in origin but theft“

From this text comes the better known aphorism “All property is theft”. We interpret this with Sade, as meaning that the origin of all current property was derived at some point from a theft, an invasion, or perhaps an enclosure of the commons.

That is not to say that you committed a theft, when you bought your flat in town with the money you worked hard to earn. No. You merely dealt in stolen goods. The land your property stands on was once stolen, and somewhere back in the chain of in-good-faith property transfers, stands the person or state who stole it.

America was stolen from the native Americans by the European settlers. Australia, India and chunks of Africa were stolen by the British. Britain was conquered by the Norman French in 1066, and the Vikings before that. The Romans stole all of Europe.

In many cases, the indigenous peoples overrun by the European empires, had themselves taken the land from those who were there before them. It was the Persian Mughals whom the British dis-possessed in India, not the native population.

In each case, the invaders handed out the spoils to their followers, and then legitimised their theft by making laws to retrospectively grant themselves ownership rights. The laws and property rights of the losers were ignored.

It is not just history which is written by the winners. The law is also written by the winners.
How interesting that laws were created by nations to legalise the theft of entire foreign continents, where those same nations criminalised the theft of a loaf of bread, within their own borders.

We should all be wary of any nation which fails to protect the property rights of foreigners (as determined by those foreigners) in the same way that it protects the property rights of its own citizens. Such a stance expresses a preference for the ethics of force, rather than the ethics of trade.

Justice

If we believe and assert that theft is wrong, then justice requires punishment and restitution. Those who should have been punished for the theft of nations and continents are mostly long dead, but restitution should still be provided for those whose lands were stolen. However, there are several intractable problems with such a restitution.

Firstly, that the timescale to which we should revert ownership is inevitably arbitrary. For example, merely undoing the most recent European empires is not solving the problem – it just rewards the previous set of invaders before that. Should Britain be returned to the Vikings? Identifying the first theft of each piece of land occurred is rarely possible, because the details are lost in the mists of time.

Secondly, the present value of property assets is a mixture of the value of the originally stolen land, and the improvements made to it by later “owners” such as the cultivation of arable land, or the houses, factories, hospitals, schools built on the land. Should the improvers of the property have some rights to the present value of the property, even if the land title is not rightfully theirs?

Thirdly, the present population are in many cases the intermingled descendants of the invaders and layers of prior populations and also more recent non-invader arrivals. Unpicking the proportions of each heritage for every individual is another intractable problem for which we do not have the data. Suppose Elizabeth Warren really had been 1/1024 Cherokee like she claimed, would she have been entitled to a share in any restitution for the native Americans?

In many ways, this problem is similar to the claims for restitution made by the black American descendants of slaves. That there was a grave historical injustice is unquestionable. It is clear that theft of people, enslavement and murder occurred. What is unclear is how the details of such a restitution might be implemented, without creating further injustices. Should white descendants of twentieth century Irish immigrants be paying? Does Barack Obama get paid because he is a black man or pay as the child of a white mother? Does it net out to zero for him? Note that his father was Kenyan, rather than a descendant of slaves.

Similarly in the British context, throughout the middle ages, landowners tried to enclose previously common lands. Sometimes the law supported the enclosures and sometimes it was intended to defend the smallholders. Regardless, many thousands of smallholders got pushed off the lands their families had worked for generations.

It is tempting to look at reparations towards specific groups as beginning to address these historic injustices. But why are today’s people to be held accountable for the unjust actions of their ancestors? Such a concept does not exist anywhere else in law. Why should today’s descendants of the victims be entitled to reparations, when it was not today’s people who were dispossessed or enslaved?

The main answer appears to be in the different life chances which are available to the descendants of the historic groups. Worse life chances for the descendants of the victims. Better life chances for the descendants of the invaders and appropriators. Fortunately, this present-day consequence of historical injustice is able to be addressed. And without having to unpick the details of history.

To address lower life chances, I propose:

• Free education for everyone. Up to and including college/university, for anyone who can pass exams to show themselves capable of absorbing the next stage of the content. Tuition and minimal living costs to be funded by the state.
• Free adult classes for the local language (English for UK, etc) and for computer and internet skills. Enough to be able to access the (already existing!) free internet courses in everything else.

These two proposals have the useful side effect of being beneficial to any nation, regardless of their restitution effects.

To rectify historic privilege:

• Inheritance tax increased to 50%. Avoidance-by-gift onset period to be extended to 20 years. (Including removal of Trust-based routes for evasion. To include all assets owned or controlled, regardless of location/jurisdiction. Any onshore assets owned by foreign domiciled persons/corporations must demonstrate ultimate beneficial owners or be forfeit.)

An inheritance tax is preferred to a wealth tax in order to target unearned wealth rather than earned wealth. We should have no problem with an innovator like James Dyson becoming rich. But someone like Françoise Bettencourt Meyers has done little to justify their outsize wealth and consequent power, and so whittling away their inherited wealth over a few generations ensures that historical power and wealth does not automatically translate to present power and wealth.

A long onset inheritance tax also has the useful side effect of encouraging the transfer of money power away from the post-retirement boomer generation who have been the main beneficiaries of massive national debt increases and money printing.

RJ7: Nov 2023