Society is impossible without inequality.
–Napoleon Bonaparte, Emperor of the French
Is it personal choice or the society in which we live that creates unequal distributions of wealth? In Essential Property, Timothy M. Mulvaney and Joseph William Singer agree with the Emperor of the French: the source of inequality lies in the state, or, more precisely, its laws, including private property.
This observation confirms an intuitive sense that in its very essence, private property is both inequality and, that fact notwithstanding, it is not soon to disappear. Too much depends on it. And, frankly, not only is it deeply ingrained in our liberal world, but also very possibly in our DNA. While eliminating private property’s inequality might be impossible, Mulvaney and Singer argue that we can look for ways to reconfigure it so as to reduce its unequal distributions.
Mulvaney and Singer suggest that inequality results from four key facts: (i) human vulnerability resides in our basic needs; (ii) fulfilling basic needs requires resources sufficient to meet the necessities of human life—including housing, food, medical care, childcare, and educational training; (iii) these necessities are provided by others; and (iv) for many of us, our wealth is either insufficient, or entirely absent, making it difficult or impossible to acquire from others these necessities.
The result? A “mismatch between property resources—which consist of both incomes and wealth-creating opportunities—and the expense of securing what is essential to living a dignified and comfortable life.” (P. 607.)
Those of us who come out on the short end of the mismatch are told: get a job and work hard. In other words, inequality is entirely due to personal choice. Mulvaney and Singer name and shame this tired trope for the fantasy it is, albeit deeply ingrained “because [people] have been repeatedly told it is so. Those who are the purveyors of this myth have gone to a lot of effort to make us believe that ‘the system works’ and that opportunity is there for the taking.” (P. 654.)
The real culprit, of course, resides in the structure of private property itself, which allows those with capital the freedom to generate more, which includes deciding how much property to give to employees as wages. By restricting such freedom, “the owner has no guarantee of being able to manufacture any profit, let alone to maximize profits.” (P. 624.) Mulvaney and Singer thus confirm that what Marx wrote in the first volume of Capital almost 200 years ago is still true today.
Law facilitates the capitalist’s wealth maximization in two ways. First, by attempting to reduce regulation that constrains profit maximization. Second, by reliance on freedom of contract—that “the state…should not limit the subjects on which private parties can voluntarily contract, regulate the terms of any contracts, or establish conditions for the development of contractual relations in the marketplace.” (P. 626.) Both rely upon the pseudo-moral rationale that “through a combination of talent and hard work—or the lack of one or both—people on all sides of the inequality divide deserve their fate.” (P. 627.)
In a legal-realist inspired response, Mulvaney and Singer argue that it is not the market, but the system of property that allocates land and capital, and that those allocations allow the capitalist to exercise power over employees by undervaluing and expropriating their labour. Correction requires “structural reconfigurations that shape the economic and social relations that connect and constitute us…emphasiz[ing] solidarity and mutual obligation.” (P. 637.)
It is not beyond a liberal democratic system to do this. Writing about the United States, Mulvaney and Singer conclude that “we have engaged in this type of reform by reallocating and redefining property rights to outlaw relationships characterized by the likes of feudalism, oligarchism, aristocratism, enslavement, and apartheid.” (P. 638.) Their reconfigurations can do the same to relationships characterized by economic oppression and exploitation.
Four principles of justice must underpin the reconfiguration of property. First, circumstance sensitivity asks us to pay attention to how things are rather than how we imagine them to be. Second, an antidiscrimination norm that treats people with equal dignity will focus our attention on whether real conditions are acceptable as a matter of social justice. Third, we must create a realistic opportunity to “ensure that it is readily possible for [people] to earn a dignified living.” (P. 647.)
And, finally, because living together means our lives are intertwined, the traditional law of property and contract cannot, on their own, match incomes and wealth to a dignified life’s expenses. Doctrinal components of law—“property-adjacent laws and institutional structures”—cannot be seen in isolation; rather, matching income and necessities requires looking at the full range of laws and their interaction.
All property theory, of course, faces the difficulty of justification. Whatever property might do by way of good, in the end, it must always result in an unequal outcome. Some will have more, and some less. If that were not so, we would have no need of property. Everyone would agree with the allocation of goods and resources, whatever it was, without the need to resort to a concept and system of property that would explain—read “justify”—that outcome.
So, if one were to take issue with Mulvaney and Singer at all, it would be to ask how a system that allows for the continued peddling of the “you make your own way, so get a job and work hard” fantasy to the great detriment of so many people can be justified at all, even if it is reconfigured using the suggested justice principles. While Essential Property makes a deeply significant contribution to the scholarship on property theory, Mulvaney and Singer never tackle justification head on.
Nonetheless, because private property is, as I said at the outset, here to stay, we must agree with Mulvaney and Singer that “it becomes incumbent upon us to adopt norms to guide reshaping [private property’s] rules to ensure that every person has access to essential property.” (P. 653.) This piece contains essential reading, for it reveals what private property makes us—unequal—and how we can change.
