Limiting Conditions and Local Desires
Occupancy-and-Use: Neo-Proudhonian Remarks by Shawn Wilbur

There is a great deal that could be said in response to Kevin Carson’s opening statement, from the “neo-Proudhonian” mutualist perspective, but I’ll try to keep things at least relatively short. Like Kevin, my introduction to the notion of occupancy-and-use land tenure was through the works of Benjamin R. Tucker and the Liberty circle and, like him, I think that Proudhon’s famous phrase regarding property has been used in unfortunate ways by many anarchists to avoid the question of property. Beyond that, however, our positions seem to diverge, beginning with the very basic question of the indispensability of property rules. As a result, my response will tackle two different tasks: to briefly defend the viability of the Tucker- and Ingalls-inspired occupancy-and-use system, and then to suggest that Proudhon’s work, whether it is a question of the early theory of “possession” or the later “New Theory” of property, indicates different approaches to the question of land tenure.

It is hard to talk about the viability of land tenure systems in a vacuum, particularly in a modern context where “land,” even in the broadest sense of natural resources, is arguably less dominant among the factors of production than it has been in other eras. If we were to survey the various reforms championed by Tucker over his career, we might pick something like Josiah Warren’s cost principle as one more amenable to consideration alone, while occupancy-and-use, mutual banking and some others are both more interdependent and more dependent on particular conditions for their efficacy. It is also hard to judge the various proposals without situating them either as transitional reforms or systems for “after the revolution” (however we might conceptualize revolutionary change.) All of this means that the most ardent, but serious advocate of occupancy-and-use ought to be able to imagine scenarios in which it was not a solution to the most pressing problems, where it was not particularly compatible with other solutions, or where the demand for other institutions would specifically shape the way that it was implemented. For example, as a transitional mechanism, some combination of occupancy-and-use and mutual banking on the William B. Greene model might produce a particularly robust system, within which the members of a particular mutual credit organization would have a strong interest in protecting the occupation rights on other members and trading partners. And we would expect this particular combination of institutions to produce something much more like stable conventional ownership, complete with property registries and whatever property insurance was necessary to protect the mutual associations against unforeseen accidents. On the other hand, where the cost principle held sway — or even the more general notion that individuals should carry their own costs — we might at least find fewer incentives to shape the community through land-tenure rules. This dependency on local factors will, of course, also apply to all of the potential alternatives. It’s not hard to imagine communities within which competition for particular locations would have a strong influence on the potential success or failure of large portions of the population, and some form of land-value taxation would be a logical reform, as well as others where the specific distribution of locations and occupations would make land rent a negligible factor.

What we can probably say safely, however, is that where Tucker-style occupancy-and-use is an appropriate solution, in harmony both with local needs and with other institutions, the usual objections seem like quibbles. As Kevin has repeatedly emphasized, all land tenure schemes will be what Proudhon called “approximations,” attempted solutions to particular problems, which will undoubtedly combine success and failure among their effects. What that means is that hopefully the form of the solutions will be driven by the real nature of the problems — the very thing that critics of occupancy-and-use always seem to imagine won’t be done. So, for example, a solution to the problem of “absentee ownership” should be driven by the problem that the phrase designates, not, as is so often the case in our debates, by what we imagine the phrase itself must commit us to. “Occupancy-and-use” is shorthand, not a magic formula, so if too great fidelity to some interpretation of the phrase seems to deprive us of practices that seem harmless or beneficial, we should naturally reexamine what principle we are following or what concrete consequences we are pursuing. To respond to one common quibble, there’s nothing about solving the problem of homelessness that naturally commits us to abolishing hotels, or even equitable rental agreements. New property conventions ought to appear as an opportunity to explore new social relations and new living arrangements. If our general principle is that individuals ought to have some ownership in the real property where they are most individually invested, there is no reason that we should assume that will be a domicile, rather than a workplace or a recreational site. There is also no reason to assume that, given other opportunities, individuals will invest in the ways that a regime of “private property” has encouraged. A more mobile culture could be a less secure one, or it could simply involve additional freedoms.

I am, in the end, considerably less certain than Kevin that the various principled positions on property are likely to converge — at least as a result of their principles. Even if I was willing to grant the indispensability of “property rules” of some sort, it seems to me that the notion of “property” does not amount to a shared concept among the various currents. Among “Lockeans,” for example, the question of the provisos separates what seem to me almost diametrically opposed notions of the nature of “property,” and there are similar differences among the various types of Georgism and geoism. Many, perhaps most communists, do indeed seem to have a theory of property, but the distinction so frequently made between “personal” and “private property” is not, as is so often claimed, the same as Proudhon’s distinction between “simple property” and “simple possession.” I think that, in practice, it is likely that anarchists and other sorts of less thoroughgoing anti-authoritarians might well come to terms, but I expect that the cause would be material interests and a commitment to libertarian values of one sort or another, as opposed to commitment to principles of property. And that might be good enough in some instances, or it might be as much as we could hope for. It is, after all, the play of interests that various early anarchists appealed to most directly as the mechanism of a free society.

As an aside, I think those who are interested in establishing occupancy-and-use property on something like a natural rights basis are likely to find useful and provocative developments in the works of Joshua King Ingalls. Tucker’s use of the work of his influences was always partial and not always particularly faithful, so returning to the sources is often the source of pleasant surprises. Ingalls, for instance, responded to the idea that capitalists should be reimbursed for damage done to the land by suggesting, in a proto-ecological manner, that perhaps it was the land itself that should logically be reimbursed, rather than its owner. In turn, Ingalls’s work might be usefully read or reread alongside Thomas Skidmore’s The Rights of Man to Property. I suspect few modern readers will have much use for his agrarian communist solution to the problem of property, but the analysis that led him there remains interesting, and anticipates Proudhon in some ways.

But it is necessary, finally, to return to Proudhon. It seems clear, as Kevin has suggested, that a cursory treatment of Proudhon’s declarations about property has allowed some anarchists to sidestep the question of property. It would be unfortunate, however, if, having invoked Proudhon, a somewhat cursory treatment of the “indispensability” of “property rules” ended up sidestepping the substance of his critique.

There are, of course, conceptions of property which allow very little outside, but they are not, I think, legal conceptions (or conceptions based on rules), nor are they dependent on property being individual and exclusive. If property is, for example, simply what is proper to a given individual, then some talk of property is inescapable. But property almost always means more to us. Proudhon’s argument was that property involved an “accounting error,” through which a major contribution to production, that of the “collective force” generate by associated laborers, was simply left out of the capitalist account of production. Its share of the wealth generated was then individually appropriated by capitalists. Labor then found its the fruits of its own exertions working against it in the marketplace in virtually all subsequent transactions. Proudhon left open the possibility of a property that would not be “theft” or “impossible,” but in the end he left us without any very clear account of it. Neither “possession” nor the property discussed in The Theory of Property quite seem to fill the bill. Meanwhile, to say that we reject property as Proudhon understood it really remains a mouthful, given the multiple and wide-ranging critiques in his work.

Let us, as a thought experiment, ignore some of the rhetorical complexity of Proudhon’s critical work and assume for the moment that the critique of “property” was really just a critique of the droit d’aubaine. To say that that we embrace property as indispensable, but also reject what Proudhon rejected, we would have to subject every proposed property theory to the multiple critiques he raised. Proudhon argues, for example, against all the usual means of understanding homesteading. Will any of those mechanisms seems less objectionable if no droit d’aubaine is assumed to attach? Can any of them pertain if we acknowledge that the collective force must received its due? The problem seems fairly complex.

But isn’t the answer found in the notion of “possession”? If we take Proudhon’s word for it, then possession is explicitly not a matter of rights or law. Instead, it is simply a matter of fact. Where Ingalls suggested reducing the legal order so that possession, with the recognition of natural rights, was the entirety of the law, Proudhon seems intent on going farther. That shouldn’t startle us, since his writing on “moral sanction” suggest that society could have no power to enforce any of the pacts that might govern a more formal sort of occupancy-and-use system. In “Justice,” he declares that any anarchistic social system that exceeded “an equation and a power of collectivity” (recognition of equality-of-standing among individuals and attention to the manifestations of collective force) would immediately run aground on its own contradictions. Reading What is Property? in this light, some familiar passages may seem strangely naive, but I think there is a lot of evidence that Proudhon really did imagine a world in which the only laws were those of nature and where “rights,” as he explained in War and Peace, referred to nothing more than the future needs of developing individuals. This anarchistic vision of Proudhon’s is so stark that we often seem simply not to recognize it as such, but it seems to be the foundation for virtually all of his thought. We can talk about a “system of justice” in Proudhon’s work, but only if we limit ourselves to that previously mentioned social system. Justice for Proudhon was simply balance, unmediated by any hierarchy or authority.

If we need more indications that perhaps property rules weren’t indispensable for Proudhon, we might recall that his first published remarks on property appeared in The Celebration of Sunday, in 1839, a year before What is Property? And what we find there is a first exploration of the connections between property and theft that flips the ordinary understanding of the terms. Instead of defining theft as the violation of property, we find an exercise in biblical interpretation, an account of property being established by a “putting aside,” which Proudhon links etymologically to theft. The account is, of course, merely suggestive, but what it suggests is a view of the world in which individual property is not a given. When, in the following year, Proudhon appears to reject both exclusive individual property and communism, it is one more indication that we should perhaps take the time to look for alternatives.

That, of course, leaves the third of Proudhon’s famous statements on property, “property is liberty,” to address. From almost the beginning, Proudhon acknowledged that property was treated as indispensable because liberty was widely accepted as primary among its aims. His examination of the positive aims and possible positive effects of property was parallel to, and ultimately inseparable from, his criticism of its absolutist justifications and potentially despotic effects. When he finally truly abandoned the theory of possession for that of property in 1861 (in the work published posthumously as The Theory of Property, which was originally part of a much longer study of Poland), it was not because he believed that property was not theft, but because he believed that there were benefits to equalizing and universalizing that sort of theft (a proposition he had entertained as early as 1842.) In order to really understand the “New Theory” we should probably examine it in the context of War and Peace, which was written at roughly the same time as the bulk of The Theory of Property. Proudhon’s economic manuscripts, written in the early 1850s, reveal to us that while Proudhon was finding evidence of collective force in all sorts of spheres, he did not consider the market an example of the sort of association that generated it. If a workshop or a commune could manifest itself as what he called a unity-collectivity, market interactions were, in his mind, more like war. The “New Theory” is thus more like a model of “armed peace” than it is of, say, emergent order.

Unfortunately, between the invocations of Proudhon to avoid property and the invocations of property that neglect Proudhon, a really proudhonian theory of occupancy-and-use remains a bit elusive. While there is, no doubt, a principled approach at work in both of Proudhon’s treatment of the property question, the principle is ultimately anarchy, and we are left largely on our own to determine just how to conceptualize property. I am inclined to think that Proudhon’s critiques of existing property theories still stand up pretty well, and that the traditional approaches most likely to skirt the problem of exploitation and the aubaines, such as proviso-Lockean theory, are not of a lot of practical use under present conditions. I don’t see any very promising contenders for a theory of just appropriation, which leaves me in roughly the same position I was eight years ago, when I proposed the possibility of a “gift economy of property.” As a conclusion, let me just return briefly and expand on that notion.

There are places where Proudhon described property as a “free gift” of society. Strictly speaking, of course, Proudhon would have to have acknowledged that it was a gift that society had no right to give. According to his critique, even society cannot be a proprietor. (This is probably the simplest objection to LVT schemes.) In a truly anarchic space, outside the legal order and beyond the realm of permissions and prohibitions, there seems to be no principle that can legitimate individual appropriation directly. And in a world filled with unity-collectivities, what is proper to each of us is mixed up with the potential property of everyone else. Conflict seems inevitable. We are told that the present system cannot even sustain a living wage for all workers, so just imagine if everyone simply demanded their own subjective valuation of their labor, let alone their share of the fruits of collective force. Simple anarchy could very well be a matter of everyone being up in everyone else’s business, with no authorization either to intrude or to withdraw. I suspect most of us would prefer some other arrangement.

If we are to find a social order that more closely resembles emergent harmony them armed peace or open war, what are we to do? If we cannot take, then perhaps we can give. We know the value and the virtues of individual property, as did Proudhon. If we are unable to secure it for ourselves as a matter of individual appropriation, then perhaps we can grant it to one another as a matter of gift or cession, not of a property that we individually own, but of claims that we might otherwise make on one another? Imagine the basis of this new property not as appropriation but as mutual extrication. Some of the steps would resemble familiar propertarian notions. First, perhaps, mutual release would yield a variety of “self-ownership.” Then, the familiar “personal property” in items of more intimate attachment or use. Beyond that, real property on the basis of occupancy-and-use. Then, perhaps, a sphere of alienable goods and a recognition of exchange — based, like the other steps on a mutual willingness not to interfere with one another’s activities. Etc. Etc. Limiting conditions and local desires would determine the limits of the emerging system.

Perhaps this approach will seem either naïve or backward, but it has the virtue of being an approach to some form of exclusive, individual property that I suspect can pass muster according to the Proudhonian standards so often invoked — even in the demanding form I have attributed to them. What I am describing seem to me to be steps on the road from market exchange as a form of warfare to the possibility of reinventing markets in a form much more closely resembling Proudhon’s unity-collectivities, with their dividends of collective force. But I suspect we are already well into a somewhat different conversation.