Romain SuJournaliste français correspondant en Pologne

In a global and complex world, private property and sovereignty fall into irrelevance

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As a species, humankind has probably never been as powerful as today. In the course of the last thousands of years, we have become dominant on Earth, domesticating certain types of animals and plants or creating new ones to fulfil the needs of an endlessly growing population.By discovering how to control fire and by developing construction techniques, we have to a large extent managed to shield ourselves from weather changes and to settle in territories at first inhospitable. The invention of ever more complex transportation modes has allowed us to travel longer distances in shorter amounts of time not only across the land, but also through the sea and the air. In all likelihood, we have been so far the only species on Earth to have been able to fly to outer space by our “own” means – i.e. not counting other living organisms that we have voluntarily or accidentally brought up there. Those geologists, environmental historians and other scientists who claim that we have opened a new epoch, the Anthropocene, where we are the main geological force driving changes in the world’s ecosystem, have not been exaggerating.

Yet at the same time, it seems that we feel more and more powerless. Among changes we have been causing, there are some we would like to stop or to reverse, but even though they are human-made, they look as if they were out of control: climate change, overfishing, plastic pollution. Locked in certain habits and systemic inertia, we are also trapped in a collective action problem, where each of us is reluctant to make efforts because we are afraid of losing out to those who don’t do the same. We can observe this problem both at the level of international relations and in our individual behaviour towards our fellows.

It might be that our social behaviour and common institutions have not been evolving at a pace sufficient to keep up with the rising complexity of our society. This complexity has diverse causes and manifestations. One is the process of “social division of labour” (Émile Durkheim) that goes far beyond economic production and affects most social spheres, where it increases simultaneously the depth of specialization and differentiation of human roles. It also makes us more interdependent, since our narrowing specialization comes at the cost of individual or family self-sufficiency. Technological progress has now broaden the scope of this “organic solidarity” to the entire planet, even if not every individual is connected or is aware of this connection to the same extent.

The next effect of technology is to enhance both the power and range of human actions, individually and collectively. As individuals, we can remotely exert control over items that are beyond arm’s reach, or with the help of mechanical devices, we can lift up things that our bodies alone could not. As a collective, be it a family, a tribe, a city-state, a nation, an empire or humankind, each generation, rich with the knowledge and physical assets passed on by ancestors, does not have to reinvent the wheel and can build upon it cars, trucks, airplanes or planetary rovers. However, nuclear and plastic pollution also recall us that not all of the lasting and wide-ranging consequences of our technologically enhanced actions have been desired or are desirable.

Finally, a third effect of technology is acceleration. We do not primarily mean here the speeding up of processes like transport and communication, though this is also not neutral for human behaviour, but first and foremost social acceleration (Hartmut Rosa). Encouraged by the ideals of freedom, individual autonomy and self-determination, the occurrence of major social changes within one generation’s lifetime rather than every couple of generations introduces an additional engine of differentiation in our societies and makes them potentially less stable. Moreover, acceleration weakens traditional sources of authority like religion, age, academic or professional qualifications because related rules and knowledge become obsolete at a faster rhythm. In fact, according to Hanna Arendt, authority has already gone extinct in the 20th century and has left only two ways of getting people’s obedience – “coercion by force” or “persuasion through arguments”, the latter having been favoured during the past decades as the main social coordination mechanism due to falling tolerance for violence and stronger belief in equality.

If expressed as an image, the functional reality of our society could be compared to a three-dimensional spider web that spans all over the world and where every person located at a node can be, purposely or not, the origin of vibrations or be shaken by vibrations coming from other, even very remote nodes (individuals) or threads (interconnections). The web is so broad that it leaves almost no area or person unconnected, so that some are actually part of it despite not wanting to. Furthermore, there is no alternative web. In that sense, both the world and the web are “full” (Joseph Tainter), with no possibility of exit for the major part of the human population.

Alike Metcalfe’s networks, this web, characterized by its quasi-universal reach, is extremely powerful – and so we are as its main constituencies –, but controlling this power requires an adequate coordination system able to meet the following criteria:

  • ensure active participation of the largest number of persons to decide on what to use this power for and in which ways,
  • find a balance between the interests of individual nodes and the web’s, having in mind that the web also has to serve next generations and other living, non-human beings who do not directly participate in the decision-making process,
  • be effective, meaning that decisions should produce outcomes as close as possible to those wanted.

These three criteria reflect three fundamental and complementary principles. First, the system must be democratic, both for ethical and practical reasons. In a complex structure where power is highly fragmented, collective outcomes depend a lot on individual actions, and personal commitment is usually more effective at delivering them than external coercion. Second, the coordination system must be as holistic as the power system it aims at controlling, otherwise it will leave out and be eventually overwhelmed by externalities and free riding (Ashby’s law of requisite variety). Third, it must be effective as it is not only its raison d’être, but above all the condition of people’s participation. Coordination is costly and if it doesn’t pay off, participants will prefer to withdraw, despite the fact that in the long run, such a step makes everybody worse off.

Our current coordination system, nonetheless, looks very different from the functional reality of our world. It is based on two twin principles, sovereignty and private property, and can be modelled as a series of juxtaposed, opaque and closed boxes. By default, each box, be it a state, a limited company, or a real estate, is under the absolute and exclusive control of its legal owner or sovereign. The nature of this sovereign – an ordinary citizen, a group of shareholders, a king by divine right or an entire nation – does not change the essential features of the power it is granted with, especially its indivisibility and clear delimitation between what falls under it, and what does not.

Interestingly, both sovereignty and private property in their strict legal meanings that have survived until today were invented in Western Europe. The latter dates back to the Roman Empire and was then defined as a bundle of three rights (usus, fructus and abusus, that is to use the owned thing, to derive profit from it and to alienate it) united in the sole hands of the owner. Such a decomposition shows however that these three types of right could in certain cases not go together.

Much later, in the 17th century, private property received an important moral justification formulated by the British philosopher John Locke. Trying to demonstrate the “natural”, and therefore legitimate character of private property, he argued that since people own their own labour, labour used to interact with things is a basis for their appropriation. Closer to us, utilitarians added that private property provided the best incentives for people to take care of things because themselves or their descendants would pick up the fruits, whereas public property, being the property of all and none at the same time, encourages free riding and leaves things neglected.

Sovereignty became theorized long after private property, but the two concepts are closely related. For the 16th-century French jurist Jean Bodin, sovereignty as a form of power of a political entity is also intrinsic and is not conferred upon, it is absolute (though limited by divine and natural law), and it is independent from other political entities. It mainly differs from private property in the fact that it is not a right granted to an individual or a collective and it applies to both things and people, whereas private property is a right which can therefore be acquired by other means than conquest and that normally applies only to things, with the exception of slaves.

In modern times, private property and (state) sovereignty started to become dominant concepts at the same period, that is in the 17th century with the enclosure movement and the Westphalian peace concluded in 1648. Together with colonial conquests, these European models have been exported to the rest of the world and now shape the entire planet at the level of international relations and within countries themselves, for plots with no legal owner or states not recognized as sovereign were regarded as terra nullius and made open for appropriation. This approach ignored the fact in these overseas territories, alike in medieval Europe, relations between people and towards things were actually already subject to some coordination mechanisms, albeit of different nature.

By contrast with those highly complex systems including various types of rights, obligations, uses and what we would call nowadays stakeholders, the concepts of private property and state sovereignty are very, if not overly simple. Not only do they confer the full bundle of rights on an object to a single, clearly identified individual, group or legal person, but in their purest expression, they also deny any kind of right to other parties, hence our image of juxtaposed, opaque and closed boxes.

Of course, in practice, the necessity to regulate exchanges or neighbourhood issues has led to the common adoption of self-restrictions in the exercise of sovereignty or ownership rights, for instance treaties and servitudes, but they remain exceptions conditional upon the will of the entitled parties, not external circumstances or third-party interests. This model is supposed to maintain both peace and prosperity by banning external interference and incentivising the extraction of gains from the domain while external coordination is reduced to the minimum and relies on two mechanisms. Besides exceptions resulting from commonly agreed self-restrictions, the most important cement of the system is what the 18th-century Scottish moral philosopher Adam Smith named the “invisible hand”, that is a belief in a common good automatically delivered when every individual pursues his own interests.

Without discussing whether this spontaneous coincidence of individual and common interests was a reality at the times of the Theory of Moral Sentiments, we should admit that it is definitely not the case in our 21st-century complex and globalized world. First, technological progress has enhanced the power and range of our individual actions far beyond our ability to foresee the entire scale of their effects. Driving a car or using a computer does not require to be an engineer, but not fully understanding their way of functioning or maintenance needs is a frequent source of collective trouble, for instance road traffic accidents and hackers’ attacks harnessing the power of zombie machines.

Second, an often forgotten part of Adam Smith’s reasoning is the role of sympathy among human motives for action. Again, our ability to sympathise with other people and to take into account their feelings and interests in our individual decision making tends to decrease together with the rising physical and cultural distance that separates us from them. According to Adam Smith, our “interest in the fortunes of others” is a part of our self-interest, not a distinct element, but if growing distance makes us less sensitive to this interest, it follows that we are no longer able to fully make out our own self-interest, which in turn disrupts the formation process of the common good.

It is not only the cement of the system that is corroding, but its very building blocks. While an 18th-century citizen could claim that “an Englishman’s home is his castle” or aspire to such a position of independence, today’s global interdependence, accepted or not, makes highly unrealistic for any individual, household or country to be completely self-sufficient and meet on their own all their needs for food, water, energy, and other resources. Even air, vital for everyone and theoretically available for everybody, is in practice a common good whose quality for an individual person depends on the behaviour of millions.

Besides consequences of globalization and technological progress, a fundamental flaw of the model of juxtaposed, opaque and closed boxes is that it considers value as an intrinsic feature of the owned thing, be it a real estate, a territory endowed with natural resources or a company’s assets. If this hypothesis was valid, the exclusive character of property rights and sovereignty would make sense in helping to preserve the satisfaction or utility derived from the exchange or use value of the owned thing. Yet more often than not, value is relative and the satisfaction or utility it brings depends on exogenous conditions like the circulation of similar objects (phones are more useful if other people are also equipped, but an excessive diffusion of cars creates traffic jams that lower utility for all), social value and judgments (why are certain vinyl records of the Beatles so expensive?), or their absolute uniqueness or scarcity (how many villas is it physically possible to build on the beaches of Corsica?). The model of juxtaposed, opaque and closed boxes privatizes gains or losses generated by value changes and offers no solution in order to try to orientate these changes towards a win for all direction, apart from commonly agreed self-restrictions that are only exceptions to the general principle of absolute power.

The more our world becomes functionally global and complex, the more the concepts of private property and sovereignty demonstrate their inability to manage it and thus fall into irrelevance. Our feeling of powerlessness is all the more frustrating that these legal instruments embody a promise of absolute power which simply breaks over the multitude of levers actually necessary to action for reality to move a bit closer to our will.

That is not to say that state property or collective ownership represent better alternatives. These mechanisms suffer from the same weaknesses as their private competitors, namely that they overconcentrate legal rights in the hands of a single entity while not including bridges to interact with external parties. Even when the ruling body extends to all members of a given community or society, formally resolving the question of external stakeholders, the problem is that participants are reduced to a single dimension, for example voters or party members, negating the fact that persons have different interests and may behave differently in their capacity of citizen, consumer, worker, car driver, pedestrian or parent.

This is also the reason why modern processes of separation of powers and devolution remain insufficient to render power and control more effective. Indeed, both redistribute decision power within the political sphere – horizontally between the legislative, executive and judicial branches, and vertically down to local governments –, but not outside it. In turn, other decentralization processes such as the acceptation of the free market economic model with limited intervention of political authorities have strengthened the autonomy of the economic sphere, however this realm does not obey democratic principles and its activity is artificially narrowed to the sole quest for higher GDP and shareholder value, respectively at macro and micro levels. Again, in comparison with the interests of workers, consumers, subcontractors, competing firms and local communities, the excessive decision power deriving from shareholders’ property rights mobilises the effective power of businesses essentially at the service of this particular group with little or no attention paid to externalities, even when they are detrimental to the very same shareholders in their capacity of neighbour or inhabitant of this planet.

Recognizing the inadequacy of the institutions of private property and sovereignty to coordinate and manage our functionally global and complex world does not mean that the way out is to discard them at once and altogether. Indeed, they exist not only in international treaties, constitutions, cadastres and other legal documents, but first and foremost in our minds as concepts to organize our societies and define models of “good” and “bad” behaviour. This cannot be simply scraped from one day to the next, at least not in a peaceful manner.

Nevertheless, there are solutions to start adapting those institutions to the functional reality of the 21st century, and some of them are even already being implemented to a greater or lesser degree. Here is a short list of examples:

  • since value is not a purely intrinsic feature of things but largely depends on exogenous factors like other people’s needs or a given level of technological development, it is legitimate that it is not fully captured by legal owners but shared with the rest of society. This makes a case for taxing wealth and the extraction of natural resources and for using revenue for the promotion or preservation of common goods like water management, air quality or landscape and biodiversity protection. In exchange, legal owners would still enjoy the right of fructus and see the exchange and use values of their assets improved by a favourable environment;
  • because progress has made hardly possible for individuals or states to foresee the whole range of consequences of their technologically enhanced actions, the decision power of legal owners or sovereign states should be shared with other interested stakeholders like neighbours, local communities or trade partners. This should of course work two-way and grants legal owners and sovereign states codecision rights outside their jurisdiction, providing they can prove a legitimate interest, similarly to the effects doctrine in competition law;
  • resulting decision-making processes should not be centralized in the hands of a single body, however large is the number of participants sitting in there. Complex governance is not about making the table bigger, but about multiplying the number of tables in order to give voice to interested parties in their various capacities – enfranchised citizens, consumers, workers, neighbours, parents, butterfly collectors… This means breaking up the monopoly of political delegates on the political realm by conferring at state and international levels codecision rights on non-governmental actors such as businesses and non-profit organizations, while at the same time democratising those entities to strengthen their legitimacy, persuasiveness and effectiveness, inter alia through a wider application of the cooperative principle “one person, one vote”;
  • the excessive focus on GDP and other indicators expressed in monetary terms has led many of us to lose sight of the reality behind them and its multiple dimensions. This problem is not only due to the weaknesses of the definition of GDP valuing certain elements that are in fact costs bringing no welfare improvement. More fundamentally, it is about the pressure to constantly expand the cash nexus whereas a complex society implies the coexistence of diverse ways of meeting people’s needs, the market being one among others. If we acknowledge this, apart from indicators expressed in money, we should add an overarching framework centered on what people declare as their needs and whether those are satisfied, whether by the market or not. At the end of the day, water drawn from a garden well, homegrown vegetables or care provided by a relative, though invisible for economic statistics, are not necessarily worse than their market-sourced alternatives.

After all, powerlessness is also a relative feeling. Making the web more “conscious” by underlaying de facto interdependence connections with decision power channels will increase both our personal sense of agency and the collective manoeuvrability of the web, but nevertheless we can’t expect it to give us full control over reality. Even with improved coordination, our effective power has limits, and the idea of absolute power embedded in private property and state sovereignty was but a deceitful and dangerous myth that should be definitively abandoned.

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