Chapter 7 Chapter II The Origin of Liberty, Property, and Justice

No one has the right to attack separate property and profess to value civilization.The histories of these two phenomena are inseparable. Therefore, property as a social form is inseparable from human livelihood. Men's entitlement to civil liberty is in proportion to their desire to impose moral restraint on their dispositions; to their preference of love of justice over personal avarice. Liberty and the Extended Order If it was morality and tradition rather than reason and calculating reason that raised men above barbarians, then the unique foundations of modern civilization were formed in antiquity in the region around the Mediterranean.In this region, societies that allow individuals to freely exploit their knowledge gain an advantage over societies in which the actions of all are determined by common local knowledge or the knowledge of the rulers because of the possibility of engaging in long-distance trade. .As far as we know, the Mediterranean region was the first place to recognize the right of individuals to dominate a recognized private sphere, which enabled individuals to develop dense networks of commercial relationships among different groups.This network operated independently of the views and wishes of the local chiefs, because at the time it was difficult to centrally manage the activities of those seafaring merchants.If we are to accept the statement of a reputable authority (one who certainly did not favor the market order), then "the Greco-Roman world was clearly at its core a world of private ownership, from a few acres of arable land to So was the great domain of the Roman nobles and emperors, a world of private trade and manufactures" (Finley, 1973: 29).

In fact, this order, which fosters the diversity of private purposes, can only be formed on the basis of what I would like to call discrete property, which is Maine's more accurate term for what is commonly called private property.If divided property is at the heart of morality in any advanced civilization, it seems that the ancient Greeks were the first to recognize that it too was inseparable from individual liberty.The framers of the constitutions of the ancient Cretans are said to have "taken for granted liberty as the supreme good of the state, and for this reason alone made property exclusive to those who acquired it, whereas under conditions of slavery everything was belong to the ruler" (Strabo, 1917: 10, 4, 16).

An important aspect of this freedom—that is, the freedom of different individuals or small groups to pursue their own goals according to their differing knowledge and skills—is made possible not only by decentralized control over the various means of production, but also by An approach that is practically inseparable from the former: the recognition of agreed means of transferring such control.The individual can decide for himself how to use particular goods according to his own knowledge and desires and that of whatever group he may belong to, and his ability to do so depends on the generalization of a respected private sphere at his disposal. Recognition, too, depends on the way in which rights to particular goods can be transferred from one person to another.From ancient Greece to the present, the premise for the existence of this kind of property, freedom and order is the same, that is, the law in the sense of abstract rules.It enables any individual at any time to come to a clear view of who has power over any particular item.

In the case of certain objects, the idea of ​​personal property certainly arose very early, and the first handcrafted tools are probably a case in point.A unique and very useful tool or weapon is, in any event, so attractive to its maker that it is psychologically difficult to transfer it to someone else. Accompanying him into the tomb - as shown by the "tholo" or honeycomb catacombs of the Mycenaean period.Here comes the combination of the inventor and the "rightful owner" and the formation of many basic ideas that go along with it, sometimes accompanied by legends, such as the later King Arthur and his god named "Ik Calibur". The story of the sword, which tells of the transfer of a sword not according to human laws, but according to "higher" mystical laws or "powers".

As these examples show, the expansion and perfection of the concept of property must have been a gradual process, and it has not even been completed yet.Among mobile groups of hunters and gatherers, the idea had little meaning, for among them the man who discovered a source of food or hiding place was obliged to tell his fellows what he had found.The first handcrafted durable tools belonged to their makers, presumably because only they possessed the skill to use them.At this point King Arthur and his Excalibur is still a very appropriate story.Although Excalibur was not created by King Arthur, he was the only one capable of wielding it.On the other hand, however, it is possible that the differentiation of ownership of valuables began when the need for group bonding was weakened and individuals began to assume responsibility for more limited groups, such as families.It is likely that the necessity to keep a productive property untouched gradually led to the shift from collective to individual ownership of land.

But it is not very useful to speculate on the exact course of these developments, since it is likely to be very different between those who advanced in nomadic life and those who developed agriculture.The point is that the initial emergence of discrete property was indispensable for the development of trade, and thus for the formation of unified and coordinated larger structures, and the emergence of signals we call prices.Whether an individual, an extended family, or a voluntary group of individuals is recognized as possessing a particular item is less important than allowing all persons a choice in determining the use of their property.Especially in terms of land, there will also be some arrangements of "vertical differentiation" of property, such as the distinction between high and low owners, or between landlords and tenants, as is the case with the development of the modern real estate system.Today such an arrangement would presumably serve a greater purpose than some of the more primitive notions of property.

Nor should tribes be considered the starting point of cultural evolution.In fact, they are the earliest products of this evolution.These "earliest" tight-knit groups shared ancestry and behavior with other individuals and groups with whom they were not necessarily familiar (discussed in the next chapter).It is therefore difficult to say when tribes first became guardians of common traditions, or when cultural evolution began.But, however slowly and however hindered, orderly cooperation is expanding, and general, goalless abstract rules of conduct replace common concrete goals. Classical Legacy of European Civilization

It also seems that the Greeks, especially the cosmopolitan Stoics, were the first to articulate the moral tradition that the Romans later popularized throughout their empire.We know that this tradition has met with serious resistance and will continue to do so again and again.In ancient Greece, it was of course mainly the Spartans, those who were most vehemently opposed to the commercial revolution, who did not recognize personal property and instead allowed and even encouraged theft.In our time they are still models of savages who reject civilization (for a typical eighteenth-century view of them, compare Dr. Samuel Johnson in Boswell's Biography, or Friedley Schiller's essay "On Lycurgos and the Legislation of Sauron").In Plato and Aristotle, however, we find a nostalgia for a return to Spartan ways that persists to the present day.It is the desire for a micro-order dominated by a totalitarian government.

It is true that the great commercial societies that developed in the Mediterranean region once depended on the protection of the Romans from marauders, who, as Cicero says (Republic, 2, 7-10), were still More martial, able to control the region by conquering the most developed commercial centers, Corinth and Carthage, which lost their military prowess because of "greedy trade and navigation".But in the last years of the Republic and the first centuries of the Empire, under the rule of senators deeply involved in commercial interests, Rome provided the world with a model of private law based on the absolute notion of personal property.It was only after Rome's central government increasingly abolished entrepreneurial freedom that this first extended order began to decline and eventually collapse.This process occurs again and again: civilization can expand, but it is unlikely to develop much under a government that has taken over the day-to-day affairs of citizens.It seems unlikely that an advanced civilization would have developed without a government whose primary goal was the protection of private property, yet the resulting further process of evolution and growth was repeatedly interrupted by "mighty" governments.Governments that are powerful enough to protect individuals from the violence of their fellow men enable the evolution and voluntary cooperation of an increasingly complex spontaneous order.But in order to carry out what they think is greater wisdom, they do not allow "all kinds of social systems to develop at will" (taken from a typical term under the entry "social engineering" in the 1977 edition of "Fontana-Harper Dictionary of Modern Thought"), Sooner or later, such powers will be used to suppress the liberties they originally protected.

If the fall of Rome did not permanently stop the evolutionary process in Europe, similar developments in Asia (and later in Mesoamerica alone) were checked by powerful governments (similar to feudalism in Europe in the Middle Ages, but with power over Europe) also effectively suppressed private initiative.Most notable among these was Imperial China, where civilization and ingenious industrial technology advanced enormously during recurring "periods of trouble" in which government control was temporarily weakened.But these manifestations of rebellion or departure from the norm were invariably suffocated by the power of the state, which only wanted to maintain the traditional order intact (Needham, 1954).

This can also be well explained by the situation in Egypt.We have some excellent records of the part that private property played in the initial rise of this great civilization.Jacques Pirna, in his study of Egyptian institutions and private law, described the law at the end of the Third Dynasty as essentially individualistic, when property was "personal and inviolable, wholly subject to the owner's domination" (Pirna, 1934: II, 338-m), but he also records that it began to decline in the Fifth Dynasty.This led to the National Socialism of the Eighteenth Dynasty, which is described in another French work from the same period (Derain, 1934).This phenomenon persisted for the next two thousand years, which largely explained the stagnation of Egyptian civilization during this period. Likewise, in the case of the revival of European civilization in the late Middle Ages, it can be said that the origin and justification of the expansion of capitalism—and European civilization—was due to political anarchy (Bashler, 1975: 77 ).Not under stronger political rule, but in Renaissance Italy, in the cities of southern Germany and the Low Countries, and finally in England with a looser government, that is, under the rule of the bourgeoisie rather than the warlords, The modern industrial system has been developed.The protection of discrete property, rather than the government dictating its use, provided the basis for the growth of the dense network of service exchanges that formed the extended order. It is a dogma of historians, not least of all misleaders, that the establishment of a powerful state is the pinnacle of cultural evolution, when in fact it often marks its end.In this matter the student of early history is entirely swayed by, and therefore deceived by, the relics and documents left by those in power.The founders of the extended order often did not create the fortunes that could build monuments, and thus left little visible evidence of their achievements. "Where there is no property there is no justice" The intelligent observer will have little doubt that the emerging extended order is based on a security guaranteed by the government, and its coercion is limited to the implementation of abstract laws that determine what things are.For example, John Locke's "individualism of ownership" was not only a political doctrine but the conclusion of an analysis of the conditions that brought wealth to England and Holland.It is based on the insight that to secure peaceful cooperation among individuals, the basis of prosperity, regimes must uphold justice, which cannot exist without the recognition of private property: "'Where there is no property there is no The proposition of justice' is as certain as any proof in Euclidean geometry: for the idea called property is a right to things, and the idea which is called injustice is a right to things Violation or trampling of a right; evidently that is how these ideas are founded, and from which these names are given to them, and I am convinced that this proposition is as true as the sum of the three angles of a triangle is equal to the sum of its two right angles. ” (Locke, 1690/1924: IV, iii, 18) Not long after, Montesquieu also expressed his opinion to the world: it was commerce that spread civilization and polite manners to the barbarians of northern Europe. To David Hume, and to other Scottish moralists and scholars of the eighteenth century, the recognition of separate property clearly marked the beginning of civilization; Much of his Essay on Human Nature is devoted to this question.Later, in his "History of England" (Volume V), he attributed the greatness of the country to the limited power of the government to interfere with property.In "Treatise of Human Nature" (III, ii), he clearly explained that if the laws practiced by human beings do not stipulate the general rules of ownership and exchange of property, but "prescribe that the most common virtues have the greatest wealth, . . . and the natural ambiguity and the ego of every individual, makes virtue so indeterminate that no definite rules can be derived from such laws, which must at once lead to the general disintegration of society."Later he said in "A Study of Human Understanding": "Phantomists may think that the rule is based on mercy, but only the saint can receive the world; the officials quite correctly put these proud scholars in the same position as ordinary thieves. In fact, by educating them with strict rules, principles that seem to one's imagination to be most beneficial to society may in practice be quite harmful and destructive" (1777/1886: IV, 187) Hume clearly pointed out the relationship between these ideas and freedom, and the greatest freedom of all people is based on what he called three "fundamental laws of nature", namely, "the stability of ownership, the need for its transfer by consent, and the keeping of promises". Freedom to carry out equal restrictions (1739/1886: II, 288, 293).His views apparently came in part from customary law scholars such as Sir Matthew Blackwater (1609-76), but it was probably Hume who was the first to clearly recognize that by "justice after the fact, or respect, honesty, for another's property, Or keeping promises has become an obligation and a kind of authority governing human behavior", so that the natural moral instinct is "restricted or limited", which makes universal freedom possible (1741, 1742/1886: III, 455).Hume did not fall into the later, all too common error of conflating two meanings of liberty: the first, the outlandish sense, that it can be enjoyed by isolated individuals, and the second, that it can be enjoyed by many cooperating individuals. .Only the abstract rules of property rights—that is, the rules of law—can guarantee liberty, if understood in this latter context of mutual cooperation. These teachings were summarized by Adam Ferguson, who defined the savage as one who knows nothing of property (1767/1773:136).Adam Smith said, "No one ever saw an animal say to another animal by some movement or instinctive voice, This is mine and that is yours" (1776/1976: 26).In fact, what they say here has been the opinion of educated men for over two thousand years, though it has now and then been opposed by savage or starving crowds.As Ferguson puts it, "property is clearly an improvement" (ibid.).We have already said that these problems in language, in law, were also studied at the time; classical liberalism in the nineteenth century knew a great deal about them; probably through Edmund Burke, more likely through German languages ​​such as Savigny. Influenced by scholars and jurists, these arguments were again accepted by Maine.Savigny's exposition (when opposing the culture of civil law) needs to be quoted here in large paragraphs: "In these intercourses, if free people are to live together, let them support each other in their development instead of In order to interfere with each other, it is necessary to admit that there is an invisible boundary, and to ensure that everyone has a certain amount of freedom in life and work within this boundary. The rules that delimit this boundary and the scope of everyone's freedom are laws." (Savigny , 1840: I, 331-2) Different property forms and objects and ways to improve them As far as the property system is concerned, it is difficult to say that it is perfect; in fact, it is also difficult for us to explain what kind of content this perfection contains.If the separate property system is to actually work to its best effect, cultural and moral evolution does need to go up a notch.For example, we need universal competition to prevent the misuse of property.This in turn requires a further restriction of the micro-orders, the instinctive affections of the small groups discussed above (see Chapter 1, see also Shek, 1966/1969), which are not only governed by discrete The threat to property, and sometimes competition to them, makes people even more eager for "community" without competition. Property is originally a product of custom, and jurisprudence and legislation have merely developed it over thousands of years, so that there is no reason to think that the concrete form it has taken in the contemporary world will be its final form.People in recent times have realized that the traditional view of property is a very complex and varied package, and it has not yet found its most effective combination in all fields.New research on these issues, largely derived from the exciting later writings of Sir Plant, was unfortunately incomplete, and his former student Ronald Coase (1937, 1960) in several brief but highly influential papers This work was undertaken in China, thereby stimulating the development of a broad "property rights school" (Alzian, Becker, Zhang Wuchang, Demsetz, Pejovic).These research results, which we cannot summarize here, provide new possibilities for the further development of the legal framework of market order. In order to show how ignorant we remain in defining the best form of rights--despite our conviction that a general institution of separate property is indispensable--something may be said about one particular form that property can take. The system of rules defining the extent to which individuals control various resources is the result of slow selection by trial and error, and yet it creates a strange situation.Forms of material property, indispensable to the material means of efficiently organizing production, against which intellectuals are generally inclined to be skeptical, but it is precisely these people who, because they have to deal with, for example, written products and technical inventions, become the most ardent supporters of certain immaterial property rights invented not so long ago, such as copyrights and patents. The difference between this property and others is that ownership of material goods directs scarce materials to the most important uses, while in the case of immaterial goods, such as literary productions and technical inventions, productive capacity is also limited. , but once they appear, they can be reproduced infinitely; only the law can make them scarce, which is to stimulate the production of such ideas.But it is not so obvious whether such enforced scarcity is the most effective way to motivate the human creative process.I doubt whether it is impossible for us to own even a great work of literature if the author is not given sole copyright.I think that an argument in favor of copyright must be almost entirely case-by-case, and that some extremely common works, such as encyclopedias, dictionaries, textbooks, and reference books, would probably never have been produced if they had been freely reproduced as soon as they appeared. Again, the recurring reappraisal of this issue does not demonstrate that the acquisition of patents for inventions actually accelerates the production of new technological knowledge, rather than leading to wasteful research on problems for which solutions can be foreseen in the near future, For according to the law, anyone who happens to arrive at a solution a few minutes earlier than anyone else acquires long-term exclusive rights (Mahrup, 1962). organization as element of spontaneous order Having said enough about the vanity of reason and the dangers of "reasonable" interference with spontaneous order, I must add a word of caution to the reader.In keeping with my central purpose, I must emphasize the spontaneous evolution of the rules of behavior that contribute to the formation of self-organizing structures.If this emphasis on the spontaneity of the extended or macro-order makes it appear that purpose-built organizations do not matter at all in the macro-order, it is to misunderstand me. The elements of the spontaneous macro-order, besides the economic planning undertaken by individuals separately, are the arrangements of those specially established organizations.The evolution of individualist law has largely consisted in the fact that it has made possible the existence of voluntary associations without coercion.But as the whole spontaneous order expands, so does the size of the units it contains.Its elements are increasingly no longer the business of individuals, but the operations of organizations such as corporations and societies, and various governing bodies.Some of the rules of conduct which enable the formation of broad spontaneous orders also facilitate the establishment of specialized organizations which are suited to function within larger systems.These various and more inclusive specialized organizations, however, can in fact find a foothold only within a broader spontaneous order, and are ill-suited for existence within a general order which is itself specially organized. Another related question can also be misleading.Earlier we mentioned the increasing vertical and horizontal differentiation of various types of property rights.If at some point in this book we speak of the rules of separate property as if the content of the separate property remains the same throughout, the reader should regard this as a simplification without understanding the preceding Those limitations, it can also be misleading.In fact this is the area where the greatest progress is expected to be made within the framework of government in a spontaneous order, but we cannot elaborate further here.