Chapter 6: Control As Ownership

Chapter Six
Control as Ownership

Everything that emancipates the spirit without giving us control over ourselves is harmful.

— Johann Wolfgang von Goethe

Ownership is a practical concept, having less to do with abstract philosophic principles than it does with decision-making power. For this reason, the essence of ownership is found not in certificates of title, sales receipts, or recorded documents; but in the socially recognized authority to exercise control over an item of property, i.e., to direct what will or will not be done with it. When we are able to identify the person(s) whose will, according to the consensus of the community, is to prevail in determining the use or disposition to be made of any entity, we will have discovered who the actual owner is. But what is meant by “control?”

Control goes to the essence of ownership. To be an owner of anything, whether a chattel, real estate, an intangible interest, or yourself, is to be the effective decision-maker over such an item of property. The owner is the person whose will can be exercised over a property interest without having such control subject to veto by another. In a principled approach to property ownership, the element of control is inextricably tied to the claim concept. A claim of ownership derives its validity from a recognition by others, of the inherent worthiness of an individual to act to sustain himself or herself through negentropic action in the world. To have one’s will respecting one’s own property subject to preemption by another, whether an individual or the state, is to deny the existential significance of each of us, and to elevate such preempting authorities to the status of our owners. Once we acknowledge others to have rightful control over us, we become mere resources to their ends. To have any functional meaning in the world, our negentropic efforts must be directed to resources that can be converted into the energy necessary to achieving such ends.

It is this capacity to control a property interest that makes a claim of ownership meaningful. What is it, for instance, that prevents me from laying claim to the ownership of the moon, and to have others respect my claim? There is nothing any more unique about owning the moon than for our ancestors to have laid claim to previously unowned land on the North American continent. The moon certainly has a boundary: it is a self-contained entity. If no one else has already done so, I could run newspaper ads throughout the world asserting my claim to the moon’s ownership. But no one would be expected to respect my claim because I am not in a position to exercise decision-making control over the moon. Standing down here on Earth, there is no way that I can exert my will over the moon to have it reflect my purposes. Because property is essential to us as a pragmatic means of extending our will over some portion of the world in order to reduce entropy in our lives, the inability to exert such control over a given entity renders such a claim pointless. And yet, were I to actually go to the moon and stake out my claim to some portion of it, over which I could have such control, my claim would be entitled to respect by the same principles of discovery and claim that produced much of the post-Columbian settlement of North America. This distinction underlies Locke’s thinking as to when a claim is entitled to the respect of others. On the other hand, collectivist thinking has led a small handful of nations to ratify an international “Moon Treaty” which would, if more widely adopted, ban legal ownership of any portion of the moon by any “organization or person” unless such organization is an international governmental body. The old mindset of government agents sticking flags in the ground and claiming ownership and control of the great outdoors now threatens outer space as well.

A similar problem existed with the old legal maxim that landed property rights extended from the center of the earth into the indefinite reaches of space above the land. As I am unable to exercise any control over space some ten million light years beyond the surface of my land, it is meaningless for me to claim such an interest. The courts have long since recognized the extent of air rights as being measured by the nature of the use being made of the land. The extent of one’s ownership of the space above the land (i.e., the control one exercises over the surface) helps define the boundary of the property. Thus, a wheat farmer’s air rights would be less than the rights of an owner of a one-hundred-story office building. For this reason, I would have no justifiable claim—either in law or by the nature of property—against airlines flying their planes some thirty thousand feet above my house. Because the airlines do control such space (i.e., by regularly flying their planes through a specifically bounded area), they would enjoy such a property interest. On the other hand, if I have been operating an observatory on my land since before the airlines began flying through such space, my claim should prevail over theirs. My control over the surface might then be said to conform to the ancient maxim that my air rights extended into the endless space above my land.

To bring the issue down to earth—pardon the pun—what would prevent me from laying claim to the Earth’s atmosphere? Again, the atmosphere is bounded—albeit at increasingly thinner dimensions as one approaches outer space—and I am declaring my claim to its ownership. When I ask my first year law students this question, I usually get an empty response along the lines of “because everyone needs to breathe air.” “Then they’d better start coming up with some money to pay me for the privilege,” I tell them. I remind them that everyone also needs to occupy space, and consume food and water, and yet private ownership of these resources has not been rejected for such a reason. The grocery business is dependent upon the grocer’s owning such food whose claims he or she later sells to customers. It is the very importance of such resources to our personal survival that requires us to be free to claim and control them, and generates markets for the suppliers and consumers of such commodities. If I am to effectively reduce entropy in order to sustain myself, I must be able to consume energy from our world—including air—to the exclusion of every other person on this planet.

At this point, I usually get a student asking: “but how could any person get control of the atmosphere?” When I remind them that some people do extract oxygen from the atmosphere, put it into oxygen tanks, and sell it to the public, they begin to see that there is a principled way to address such issues. They also begin to see how the question of ownership is tied to the capacity to exert control over a specific subject matter of property. It is the ability to capture free oxygen and confine it within the boundaries of a tank that gives meaning to a claim of ownership. Should any of the oxygen escape from the tank, the ownership interest in the free oxygen would probably be lost because, while the oxygen would continue to have a molecular existence, it would no longer exist in a form that could be differentiated from previously unowned oxygen molecules. As such, the oxygen would have lost both its boundary and the erstwhile owner’s capacity to control it, thus depriving the owner of a claim entitled to the respect of others. My inability to reduce the atmosphere to my control in order to exercise my will over it would make my claim as meaningless as my claim to the planet Neptune. Furthermore—as with my earlier hypothetical example in chapter five of claiming ownership of the island’s fresh water supply— even if it were possible for me to control the atmosphere, the likely refusal of others to respect my claim to the air would render it indefensible.

The control factor is what makes patents and copyrights difficult to reconcile with property principles. If one writes a poem, novel, or other literary work, and retains possession of the manuscript, one’s claim and control—hence, ownership—remains intact. But when the author chooses to release that work to others, his or her control is lost and, like the hypothetical of oxygen released from a tank, so is the claim to exclusive decision-making. The common law courts have followed just such reasoning, recognizing a writer’s “common law copyright” in unpublished work that ends when the author “publishes” (i.e., makes public) its content. If a writer or inventor were to enter into a contract with each purchaser to not reproduce his or her work, its creator would retain a property interest in the terms of the contract. But this is not the way the present system works. Instead, the state has enacted patent and copyright legislation that, by fiat, provides authors and inventors with property interests for which they have neither contracted nor otherwise retained control.

A question that is invariably raised by critics of privately owned property has to do with the quantity of property one might claim. “In early American history, what would have kept one individual from laying claim to all the land that had not previously been owned by others?” is the usual form of such an inquiry. The fear that a few individuals might amass large landholdings seems quite misplaced in a society in which property is privately owned. In the first place, such a fear appears to be a carryover from feudalism, when wealth and status were synonymous with state-conferred and enforced ownership of land. Secondly, as history has shown, it has been governments, not private individuals, that have laid claim to entire continents by placing flags in the ground. The largest landholder by far in present day America is not some billionaire industrialist, or a “Fortune 500” corporate giant, but the federal government.

Historically, individuals tended to claim only as much land as they could reasonably manage and control. The state might have the resources—extracted from taxpayers—to control vast quantities of real estate, but individuals rarely do. As long as one’s claim of ownership is effectively limited to what that person can control—an expression of the Lockean “labor theory” of ownership—the quantity of land claimed by private persons would tend to be minimal. Furthermore, if the strength of ownership claims ultimately rests on the willingness of one’s neighbors to recognize and respect such claims, a person would have to test the limits of his or her claim within the community. Is it likely that a claim to a ten-acre tract would be respected? Probably so. Would similar respect be accorded a claim to half the North American continent? Probably not.

Under any system of property, the claim of ownership issue always comes down to the question of who is to exercise ultimate control. How, and by whom, will authority be exercised in our lives? Will decision making be decentralized into the hands of individuals, or centralized in institutional hierarchies, particularly the state? Because control is the defining factor in identifying both ownership and the locus of authority over our lives, such questions raise a deeper inquiry into where the ownership of our lives resides. Whether or not we choose to claim that ownership has more than simply an abstract, arcane significance. It goes to the very essence of what it means to be a human being. Individual liberty and self-ownership are synonymous concepts; we enjoy liberty only insofar as we insist upon the exclusive authority to control our own lives. For liberty to prevail, we must claim —and our neighbors must acknowledge—our self ownership.

These are the kinds of inquiries we have never been encouraged to undertake. In our highly structured world, such authority is centralized in the state. Because we are comfortable allowing established authorities to formulate our questions (and answers) for us, and because such entities have no interest in having us question the existing arrangements, many readers may be inclined to regard the inquiries I am suggesting with suspicion or anger. Such a response will also come from the institutional question-keepers, who have always preferred that we not ask troublesome questions. But centralized authority necessarily carries with it centralized control over the lives and property of us all. To the degree our personal decision-making has been preempted, we have lost the control—hence, the effective ownership—of our lives. If we are to live freely, intelligently, and responsibly, we must become aware of the implications of the dynamics of both centralized and decentralized systems.

In a system of privately owned property, there is no confusion—and no conflict—in the matter because claim and control will be integrated into a specific owner. Conflicts will arise only from a failure to either identify or respect separate property boundaries and the claims implicit therein. Stated another way, conflict is generated when control over property is severed from ownership. As we saw earlier, an owner may create multiple interests in what he or she owns—as, for example, a deed of trust, easement, or leasehold—but, as such interests are defined by contract as expressions of the will of the owner, conflicts will tend to be minimal and resolvable by the language of the agreement.

But in political systems, which are distinguished from one another in terms of how property is owned and controlled, contradiction, confusion, and conflict will always ensue. A woman who is prevented from putting an addition onto her home because local housing codes prohibit it, or a farmer who is legally precluded from plowing a portion of his land because it is the habitat of an “endangered species”, or a person who is compelled by a court to submit to a medical procedure he does not want, are anecdotal instances of the more pervasive conflict that is consuming our lives. Like the fractal patterns observed in the study of chaos and complexity, individualized conflicts experienced by these owners get enlarged into the more pervasive hostilities found in zoning laws, urban renewal projects, and eminent domain practices. War, itself, becomes the exaggerated expression of the conflict model that inheres in any systematic trespass of property interests.

Furthermore, because the existence of the state is inherently incompatible with a system of private property, language must be twisted and corrupted to disguise the nature of governmental action. In the American political system, which still pays lip service to the concept of private ownership of property, a candid admission of the confiscatory nature of government regulation might prove unsettling. Consequently, the courts have historically resorted to the meaningless distinction between “control” and “ownership,” or between “regulation” and a “taking.” Whatever the degree of interference with an owner’s decision-making, however, all forms of state regulation amount to some taking of a property interest. If you have $100 in your pocket, and the state forcibly deprives you of the right to use $10 of that amount as you choose, is such regulation any less a taking of your property because it has left you—at least for the time being—with control over the remaining $90?

In furtherance of such subterfuges, and consistent with the divisive premises upon which political systems are founded, our formal political/legal system has fragmented ownership into the subcategories of “title” and “control.” The purpose in doing so is to disguise the state’s regulation of private property as something other than a taking of ownership interests. The word “title” relates to “official authority or power,”¹ and generally implies the kind of ownership that a court of law would recognize as valid. When the state presumes to define, and thus legitimize, claims to property ownership, such authority necessarily carries with it those limitations on private control that are mandated by legislative or judicial power. If one insists upon using his property in ways that violate such governmental restrictions, he runs the risk of losing title to that property.

Government regulation not only usurps the authority of owners to control the use of their property, but the power to transfer their claims of ownership via contracts with others. As we have seen, a contract is but an agreement, by two or more persons, to exchange claims to the ownership of their respective property interests. Thus, when the state, through its regulatory practices, intervenes to alter the terms of this contract, or to decree, under statutes defining legal status, who can be contracting parties, it is denying people control over their property interests. Extended to its logical conclusion, such regulations amount to a denial of the self-ownership of the contract ing parties, as they are denied the liberty of controlling their own efforts and resources to sustain themselves.

It does not require a law school degree to understand that there has been a decided movement away from contractually defined rights and duties and back to having such standards determined by legislative, judicial, or administrative bodies. Doctrines of “unconscionability,” “fairness,” “unequal bargaining power,” and “equity,” have been employed, along with outright prohibitions on certain types of transactions, or the prices to which parties may agree, to greatly diminish the control individuals may exercise over their lives and property. In a contract-based system, such control is decentralized into the hands of individuals who freely enter—or choose not to enter—into agreements with others, with each party assessing their own interests and risks. But decentralist tendencies are incompatible with politically-directed systems that thrive on forced uniformity and standardization. Today, there is scarcely a realm of human activity over which the state does not demand the powers of micromanagement.

A review of the case law confirms that our legal system has failed to embrace any clear or consistent principles when it comes to the property question. If a court wishes to deny the state’s power to intrude upon privately owned land, it will speak of such verities as, “every man’s home is his castle.” If, on the other hand, this same court desires to uphold some state regulation, it will remind us that, “property rights are not absolute.” Of course, at the same time that the state denies the inviolability of private property interests, it insists upon the inviolability of its own! If you doubt this, try entering a military base, national park, or government office building, and see how the state—like a feudal lord of the manor—insists upon an absolute respect for its property holdings in defending them from trespassers and poachers (i.e., you and me). When the state erects walls or fences around such facilities, it is—like a landowner— asserting a claim of ownership to all these boundaries contain. Likewise, when it builds walls or fences around an entire nation, the state makes an ownership claim to all within such borders.

All property rights are absolute: some person or persons must exercise ultimate control over things to be owned. The only question relates to the identity of such parties, an inquiry that was as relevant on the early American frontier as it was in the Soviet Union. If we were to identify all of the persons entitled to exercise some degree of control over a given parcel or item of property, and if the interests of all those persons could be purchased by one person, that buyer would, by definition, be entitled to do anything regarding that property, including destroying it, because there would be no other party entitled to exercise control over it. This is the reason that title searches to real property are done, and that title insurance is purchased to assure the state of the title that is revealed: to identify any other persons whose interests must be obtained if the new owner wants an unlimited power over a piece of land.

The ways in which political systems usurp control over property have been rather subtle, and their implications still manage to escape even most lawyers. Because most of us do not understand that property ownership is a reflection of decision-making authority over things that can be owned, we fail to see the contradictions inherent in the judicial system’s separation of “control” and “ownership.” Like the denizens of George Orwell’s Animal Farm, we take uneasy comfort in the legalistic corruption of language played at the expense of our ignorance (e.g., “all animals are equal, but some are more equal than others”), and content ourselves that ownership—including that of our own lives—is little more than a state-conferred, defined, controlled, and limited “title.” Having become thoroughly politicized, we fail to ask the fundamental question: upon what basis does the state presume to restrict our claims of ownership to within boundaries it has decreed, and without our consent?

Every property is, by definition, subject to the absolute and unrestricted control of someone. This is what is implicit in a “claim of ownership.” Of course, this absolute authority need not be in just one person. An owner might convey his or her ownership interest to a husband and wife, or business partners who, as new owners, would then exercise joint control over some item of property. But the point is that some person— or persons—must have the final word regarding what is to be done with any given property interest. This is why the ultimate test of ownership comes down to the question: who can decide, without having to get the permission of another, to destroy this property? If a man has great quantities of food left over after a sumptuous banquet, and he chooses to destroy such remains while starving children look on hoping he will give the food to them, will his liberty to destroy the food be respected? This is not to suggest that an owner must make such a decision, or that he might not be held in contempt by others for his denial of their request; only that the owner is the one who can rightfully make such a choice. If this man’s decision is forcibly over-ridden by others, then they, and not he, must be regarded as the owner. Ownership resides in the person(s) whose arbitrariness in decision-making will be recognized by others as supreme. This principle is as true for property in a communist regime as it is in a society founded upon private ownership. Regardless of the system, it is the nature of property ownership that there must be someone who will be acknowledged as having such ultimate authority. Having this authority in the hands of private individuals is what troubles the defenders of state power, who continue to preach the catechism that “property rights are not absolute.”

The authority of government officials depends, in part, upon our continuing to believe in the myth that “we” have an ownership interest in what is really state-owned property. They have no illusions about genuine ownership control residing in any of us. The distinction—as well as the inherent contradiction in the idea of “collective ownership”—was clearly expressed in a sign I saw in a park in Niagara Falls, Ontario: “The parks are yours to enjoy, not to destroy.”

Any particular item of property may, as we saw in the examples from mining in chapter four, be subject to various ownership claims. Nevertheless, if our thinking remains clear, and we don’t confuse the boundaries of a parcel of land with the boundaries of each property interest in the land, every such claim can be identified as a separate ownership interest subject to separate control. The following hypothetical may illustrate the point. Suppose that I own a parcel of land containing an old house. Suppose, further, that I desire to set fire to this house and burn it to the ground. Am I entitled to do so? If the answer is “no,” then I am not the owner of the property, but the person or entity whose permission I require is. Let us suppose that a bank has a mortgage on the property to secure payment of a loan obligation. Let us further suppose that I had put a new roof on the house last year, for which I have not paid the contractor, who has since filed a lien on the property. Let us also assume that I have rented this house to a tenant, who still has one year remaining on her lease. Let us also assume that I have a fire insurance policy on the house and, further, a neighbor who does not want me to burn down my house. Finally, let us assume that the city in which this house is located has an ordinance designed to preserve (i.e., to prevent the modification or destruction of) historic buildings, and that my house has been so designated. If I wish to proceed with the destruction of the house, need I secure the approval of any of these parties and, if so, why?

In terms of legally defined property claims, it is likely that each of these parties enjoys a sufficient interest in this property to entitle them to exercise some degree of control over it by securing judicial remedies to thwart my plans. As with the earlier example of an automobile purchased with a loan secured by a chattel mortgage, the bank could claim a property interest in my house, the boundaries of which are defined by the contract it entered into with me. It would be entitled to exercise control over the property insofar as was necessary to protect the security interest I had created in the bank. This would entitle the bank to keep me from destroying the house, but would not permit it to restrict my repainting of the house or whom I might choose to invite onto the property. Since I, as the owner, had created this interest in the bank by contract, its interests would be consistent with both the legal and transactional definitions of ownership.

What about the lien interest of the contractor? Like the bank’s mortgage interest, the lien-holder has a legally protected security interest in the house, limited to the extent of its unpaid bill for the roof. Unlike the bank, however, it is unclear whether the lien interest was created by the terms of my contract with the roofer—which would satisfy the transactional definition of ownership—or imposed upon me by operation of law—which would be an intrusion upon my property interests.

The interests of my tenant are clearly protected under either a legal or transactional analysis. My contract with her has created a property interest in the house (i.e., the right to the “quiet use and possession” of the property) for the term of the lease. She owns a possessory interest in the house, and my act of burning down the house during the lease period would violate her ownership rights.

The interests of the fire insurance company require clarification. Its interest is not so much in the property that it is insuring, as in the contract between the company and myself. Thus, the insurance company doesn’t have an interest in my not burning down the house, but does have an interest in my not destroying the house for the purpose of submitting a fraudulent claim for its loss. Since the insurance company and I have both contracted regarding our respective property interests (i.e., my payment of premiums and the commitment of their assets), the company’s interest in the property would be—depending upon the terms of our agreement—consistent with a transactional approach to property. If I were to submit a fraudulent claim, I would be violating the insurance company’s property interests in this contract.

As to my neighbor’s objections, unless he could show that he had acquired a transactionally-based interest in my not destroying my house (e.g., a restrictive covenant by which I had agreed, with my neighbors, not to burn down my house)—an interest that the courts would enforce—he could assert a legal claim to prevent my burning of the house under either a nuisance or trespass theory. If smoke or flames were to cross my boundary lines onto his, I would be engaged in a trespass, which could be actionable under either a legal or a social definition of property. As my rightful decision making, as an owner, ends at my property boundaries, such a trespass would be a violation of my neighbor’s property interests.

But without an identifiable trespass, which will be discussed more thoroughly in chapter seven, an action premised on nuisance would be a denial of my property interests. If my neighbor’s objection to my proposed action was only grounded in aesthetic considerations, or living next door to a vacant lot, or any other concern for which he and I had no agreement, his nuisance action would amount to his trespassing my interests, by extending his decision making, through judicial action, onto my land.

Finally, as to the interests of the city, a clear conflict exists between the legal and social/transactional definitions of property interests. Since the courts will enforce the ordinance against me, the city can be said to have a legal interest in my property, at least to the extent of being able to prevent my destruction of the house. While the courts would never be so frank as to declare that the city had usurped my property interests—preferring the phrase “regulatory interest under the police powers”—it does amount to a legally protected interest every bit as much as the bank’s mortgage interest. The city’s interest fails to satisfy the transactional definition of property, however, in that its interest was not acquired through any contract with me, in which the city gave up a property interest it had in exchange for what I had given up. As in all governmental action, the city simply imposed the restriction on me and other property owners covered by the ordinance, without negotiating with us regarding our acquiring an interest owned by the city.

In a purely functional sense, because the person who has ultimate control over an item of property is the effective owner, and because all forms of government regulation create a division between ownership and control, politics always generates personal and social conflict (i.e., the purported owner is restrained in the exercise of his or her control by a state agency). I desire to use my property in a particular way (e.g., to burn down my house), but the city ordinance prohibits this. Control of this property is now divided between the incompatible preferences of myself and the city, thus creating a conflict in ownership.

Anyone who has ever given two children joint ownership of a toy, or observed the division of jointly-owned property during a divorce, can attest to the dissonant nature of two owners each desirous of controlling the same item in inconsistent ways. Such conflicts can easily be resolved by the owners contracting with one another (e.g., child A gets to make decisions on oddnumbered days, child B makes decisions on even-numbered days). At first glance, it might be supposed that the city’s ordinance qualifies as such a contractual compromise. However, since a contract requires the giving up of some property interest (e.g., one’s money, land, personal services) in exchange for the other party doing the same thing, and since, as we have seen, the city is giving up no property interest of its own in exchange for my obligation not to burn down my house, such regulations fail this test. Like the playground bully who promises to not beat you up in exchange for your lunch money, the government restriction is nothing more than an act of plunder.

In a society that has replaced concerns for individual liberty with notions of due process of law, the idea that arbitrariness is not only a permissible but an essential element of property ownership will be troubling and ring of absoluteness. Such a response reflects an ignorance of the realities of power and authority. It is the nature of every kind of human action that some person, or group of persons, will ultimately make a decision concerning a specific course of action, based upon their preferences, from which no appeal will be taken. If you and a group of friends are trying to decide whether to have dinner in an Italian or a Szechuan restaurant, you will debate the alternatives and, at some point, make a discretionary choice. No matter how much a decision-maker tries to be reasonable, or consistent with prior decisions, or tries to accommodate the views of all interested persons, his or her decision will always come down to a choice that is not subject to review by anyone. If there is some other party who can override this decision, then that person is the ultimate decision-maker. There is nothing remarkable in this: it is only a reflection of the nature of all decision making that someone must ultimately say “yes” or “no”, to make a quantum jump from one state of mind to another.

When such authority is exercised over property, the person who can make that final decision is the de facto owner, regardless of where “title” may reside. This is what is meant by “arbitrariness” herein. It refers to the locus of the decision-making authority, not to the quality of the decision itself. For example, a developer wishes to cut down an aged tree on his land in order to make way for a residential development. Another person who objects to this act chains herself to the tree in an effort to get the courts to intervene to save the tree. In this situation, the tree’s future will be determined by somebody. Whether the developer or the court prevails tells us who the de facto owner of the tree is. This is what the concept of property entails, and there is no way of avoiding the issue, regardless of the nature of the political system involved.

The intertwined nature of control and ownership also helps to explain why economies grounded in private ownership have been far more productive than socialistic systems. Because an owner is able to reap the benefits of his or her decision making over property, an incentive exists for creative, productive activity. No matter how well-intended I may be, my motivation for productiveness will be greater if I am the owner of what I am able to generate than if I am only a manager of another’s property interests, a truth continually made evident in the collective factories and farms of communist systems. As we saw earlier in Joseph Schumpeter’s contrast between owner-controlled and manager-controlled business firms, an owner tends to have a longer-term perspective in decision making than do most managers, whose outlooks become more akin to those of employees. I first encountered this phenomenon in law practice, where clients who owned their own businesses tended to be more determined to resist government regulatory practices than did the managers of firms I represented. The former seemed to have a sense that a bad decision might prove harmful to the business they envisioned their children and grandchildren owning one day. Managers, on the other hand, seemed more concerned with how their decisions would affect their careers within the next few months or years.

One also witnesses the motivational benefits arising from control in the workplace. It has long been evident in the study of managerial styles that unstructured and less formalized systems can be far more creative and productive than systems based on the pyramidal, authoritarian model. The traditional organizational structure of top-down management, with its emphasis on centralized decision making, close supervision, and rigid externalized discipline grounded in fear and threats, has proven less rewarding to both the firm and its workers than a more decentralized approach.² Conventional managerial thinking has been built on the same assumptions we find in political systems, namely, that one has “an inherent dislike of work” and “will avoid it if he can.” Because of this, it is presumed, “people must be coerced, controlled, directed, [and] threatened with punishment” to get them to work on behalf of organizational purposes. More recent management thinking, however, rejects such premises in favor of a diffused authority—sometimes referred to as “participatory management”—which has been shown to increase both productivity and job satisfaction among employees who enjoy increased decisional control over their work environments.³ Consistent with Schumpeter’s insights, it is no coincidence that such decentralist arrangements are often analogized to workers having a “property” interest in how their work is to be performed.

Property is also a system for defining and allocating responsibility within society. The person who controls the property is responsible for the consequences of his or her actions regarding such property because they were the one exercising such control. This responsibility follows not from some a priori moral imperative, but from the purely functional consideration that one who directs the exercise of his or her will has, thereby, produced the effects attributed to such control. I am responsible for my actions not because the state so mandates, or because some religion or moral philosophy has so proclaimed, but because I am the one who makes and acts upon the choices available to me. By my exercise of control over what I own, I cause that property to produce its effects. In the same causal, nonjudgmental sense in which a tornado can be said to be responsible for destroying Smith’s barn, I am responsible for what I do in the exercise of my will.

If we are able to live without contradiction —with our stated principles and our actions providing a precise Indra’s Net reflection of one another—our causal and moral responsibilities will be in symmetry. But when our behavior exceeds the limitations prescribed by our principles—e.g., extending our decision making beyond our property boundaries—division and conflict arise. At this point, we bifurcate our sense of responsibility, and seek comfort for the adverse consequences of our conduct in explanations that absolve us of personal accountability (e.g., we lack free will, we were abused as children, “the devil made me do it,” etc.)

Freedom and responsibility are thus inseparable aspects of control. Because I, alone, control the exercise of my energies, I am free to decide how I shall act. Since there is no one else who can direct my brain cells, my muscles, or my emotions, there is no other person who can be held to account for what I do. I am responsible for my actions because I control them. The realization of this simple fact is what is meant by being “free.” At the same time, the failure to understand this inseparable nature of freedom and responsibility is what makes mob behavior and other forms of mass-mindedness so destructive. By seeming to lose control over our individual will within the will of the collective, we separate our behavior from any sense of personal responsibility for our actions. The state, whether functioning as the military, police or prison systems, or bureaucratic departments, provides the clearest example of how collective authority diffuses responsibility, allowing individuals to conceal accountability for their actions in the shadows of monoliths. Words attributed to Rose Wilder Lane express this essential duality: “freedom is self-control, no more, no less.” The owner is free to control what is his, and in confining his actions to what is his, he behaves responsibly and “properly” (i.e., consistent with the property principle). The popular phrase “with freedom comes responsibility” is a clumsy way of recognizing that we are responsible for the consequences of our actions. The clumsiness of the phrase arises from its generally being used without its connection to the property concept. When such words are employed to justify the state imposing duties upon us, the element of “freedom” is severed from our actions, turning “responsibility” (as a causal factor) into an “obligation” (i.e., something we are compelled to do).

Most of us have remarkably little understanding of the interrelated nature of our individual liberty and personal responsibility. It has become commonplace for politicians and members of the media to publicly decry the lack of “responsibility” exhibited by modern teenagers. Children are criticized for using drugs and alcohol, for their lack of initiative in school or work, for their preoccupation with the pursuit of sensual pleasures, or for their poor judgments in making decisions. But responsibility is a function of control. How can we expect children to become responsible when they have been denied control over their own lives? They are compelled, by law, to attend schools that look and function like penitentiaries where they are subjected to often mindless curricula that have no apparent meaning to their lives. Those who exhibit any independence in the classroom are labeled “hyperactive” or victims of “attention deficit disorder”—meaning they have their own agendas that differ from the teachers—and are legally drugged into more compliant behavior.

Minimum wage and child labor laws greatly restrict teenagers’ opportunities for employment, and we then wonder why so many of them turn to the sale of drugs or to prostitution as ways of earning the money they hope will give them more decision-making power in their lives. Emulating the methods of the state, which has taken away so much control over their lives, many have set up their own military structures, in the form of street-corner gangs, in an attempt to exert their authority through violence. We also cannot understand why teenagers are so preoccupied with their cars. If we thought about it, we might realize that the automobile represents, to the teenager, the one part of life that is under their direct control, which responds to their commands, and takes them where they want to go. One of the advocates of the previously mentioned practice of abandoning traffic signs in various European cities has observed: “[t]he greater the number of prescriptions, the more people’s sense of personal responsibility dwindles.”⁴

Someone once defined “hell” as a place where you are responsible for what happens, but have no control over matters. Is this not what we have created for ourselves by separating control from responsibility in modern society? The state continues to expand the scope of its control over our lives and property and we then wonder why people have become increasingly irresponsible in their behavior. Responsible men and women bear the costs of their actions, confine their decision making to their own property interests, and do not impose burdens upon others. Political institutions, on the other hand, are the epitome of irresponsibility because their very nature consists in violating property boundaries. How easily does the state provide others a role model for avoiding responsibility for their actions? In the spirit of “victimhood” that now pervades our culture, men and women are able to project onto tobacco companies the responsibility for lung ailments brought on by their choices to smoke. Distillers and drug dealers—not alcoholics and addicts—are blamed for the miseries people bring onto themselves through their habits. Many of us prefer such explanations to the more troublesome task of confining our expectations of others to respecting our property boundaries, as well as accepting the sense of personal responsibility that inheres in self-ownership.

If we are to move beyond the misery and viciousness of our politicized world, each of us must be willing to confront our own thinking, for at the core of most of our problems is our fear of personal responsibility. To be responsible is to be held accountable for the consequences of our actions. Such fear is what Walter Kaufmann so poignantly labeled “decidophobia,”⁵ i.e., the “fear of autonomy.”⁶ What we fear the most is not the judgments of others, but our own. In the words of Epictetus: “It is impossible for that which is free by nature to be disturbed or hindered by anything but itself. It is a man’s own judgments which disturb him.”⁷ To avoid such self-judgments, most of us allow others to bear this responsibility that, in turn, necessitates our turning over control of our lives and property interests to those who become our authorities. But such abandonment of autonomy begins with our thinking. In exchange for giving up our liberties, we gain the comforting illusion, carried on from childhood, of being relieved of our responsibility. If things do not go well for us, we can always hold others accountable: our employer, our parents, our teachers, the politicians—those parties to whom we long ago learned to abdicate control over our lives.

The division between self-ownership and personal responsibility is also expressed in the idea that men and women are not responsible for their actions; that the causes of violent crime, for instance, lie not in the choices people freely make, but in poverty, racism, drugs, sexism, guns, alcohol, television programming, or motion pictures, to name but a few. Such mechanistic explanations for human behavior are most comforting to those who fear their own sense of responsibility, and are quite content to surrender the control of their lives to political systems in exchange for a state of dependency and release of personal responsibility. There is a childlike quality in attributing consciousness and sense of purpose to inanimate objects, while denying responsibility for one’s own acts. Having become dependent upon the decisions and actions of others, they can then posture as victims of what other people or things do to them, an attitude that keeps personal injury lawyers and politicians in business. But it is an illusion for us to pretend that we can abandon responsibility for our thoughts and actions by transferring such accountability to others. No matter how much others may threaten or try to seduce us to comply with their demands, each of us remains in control of our energies, and must choose to either resist or comply. The choice we ultimately make reduces itself to a matter of will.

To such “decidophobes” liberty, which finds expression in private ownership, is a terrifying specter. I suspect that this is a major reason why so many men and women in the 1960s and 1970s played around with notions of “self-liberation”—a concept inseparable from self-control—but then, seeing the personal responsibility implications quickly abandoned introspective efforts in favor of political and ideological proselytizing and the drafting of codes of “political correctness”: activities directed toward changing other people’s thinking and behavior. The concept of self-ownership can be very disturbing once we discover its connections to personal responsibility. Minds conditioned to a dependency upon the authority of others are not likely to be heard demanding the reclamation of control over their own lives.

We will not become “free” by attacking or overthrowing the authorities in our lives, but only by taking back what, in fact, we were never truly able to give up: the responsibility for our thinking and actions. Likewise, recommitting ourselves to political or religious systems is but to perpetuate the illusion that others are in control of our lives, and that we must content ourselves with obsequious efforts to influence their policies in our favor. To live as both free and responsible men and women is to be self-controlling, not obedient. Such a condition can arise only from a fundamental change in our thinking, and will find expression only within a system in which each of us exercises an unrestrained authority over what is ours to control. Our failure to insist upon a system of privately owned property, and to bear the personal responsibility that goes with it, has been a major contributor to what mankind has become.

The interconnectedness between “control” and a claim of self-ownership is reflected in the legal debate over whether a person should have a right to commit suicide. With the increasing sophistication in medical technology, more and more terminally ill or severely injured people face the question of whether they wish to be kept alive at all costs, or have their lives terminated. For many doctors, judges, legislators, clergymen, and moral busybodies, however, this is not a decision they want to allow the patient to make. On the surface, it might appear that the concern of such parties is simply the preservation of human life. But there is more to it than that. The same judge who, while reflecting upon his proclaimed sentiments for life, refuses a patient’s request to be taken off life-support systems, may later sentence a convicted murderer to the gas chamber. Or, members of Congress who support legislation making it more difficult for people to end their own lives—all in the guise of upholding the sanctity of life—can nevertheless be counted upon to support the expenditure of hundreds of billions of dollars to send soldiers and weapons into wars that kill hundreds of thousands of people.

What really troubles institutional officials about the right to commit suicide is the implicit recognition of the ultimate ownership authority—i.e., of self-control—being in the hands of the individual. We once again confront the ownership issue: who can destroy the property without asking the permission of another? The judge who decides to grant a patient’s request to be allowed to die, isn’t really concerned about life or death of the patient, or of upholding the patient’s choice in the matter. He is, however, very much concerned about who is to have such decisional power: the individual or the state. Randolph Bourne’s observation that “war is the health of the state”⁸ reflects the state’s need to monopolize the exercise of the power to inflict death, or what one observer has referred to as the “nationalization of the right to kill.”⁹ The religious leader who condemns suicide as a “sin” recognizes, implicitly, that if men and women begin to insist upon the authority to control their own existence, churches will have lost all power over their souls. Those who would deny individuals the authority to commit suicide on the grounds of “respect for life,” are only expressing a mechanistic, materialistic view of life. Such thinking overlooks the fact that life is respected only when the living are permitted to remain autonomous. If you and I are understood to have such ultimate authority over our very existence—a power that goes to the essence of self-ownership—think of all the other questions we might begin to ask regarding who should have control over other aspects of our lives! As I tell my students on their first day of my class on property, the question of whether they own and control themselves has profoundly subversive implications.

The utter confusion about the central role property plays in decision making in a society of free men and women is illustrated in a further issue in the euthanasia debate: the role of the medical profession in helping a patient commit suicide. That most doctors and hospitals have not maintained any consistency regarding a patient’s claim of self-ownership is evident from a long line of cases. Patients compelled by court orders, often secured by their doctors, to submit to surgeries, blood transfusions, and even amputations; mental patients forced to undergo drug or shock treatment or lobotomies; compulsory vaccinations of children; and the medical profession’s leadership in procuring legislation making it a crime for anyone to provide alternative health care that is opposed by the medical establishment, are just a few examples of how doctors and hospitals eagerly participate in violating people’s wills regarding their own lives.

The willingness to use state power to advance one’s interests at the expense of others proves infectious. Members of the medical profession might, in the future, find themselves targets of proposed legislation requiring them to perform abortions, even though the physicians may have moral objections to doing so. Upon what basis might doctors resist such a government mandate? They may now have incentive to move beyond weak appeals to their “Hippocratic oath” and try to discover a principle that will protect both doctor and patient from unwanted, intrusive practices. Perhaps in the radical idea that a patient has the ultimate authority to determine what treatment he will or will not receive, and that the doctor has the final determination of what treatment or procedure she is willing to perform, we can find the mutual respect that we have lost in our willingness to force our wills upon one another. If individual self-ownership is to be respected, the physician is just as entitled to refuse his or her services in performing an abortion or any other medical procedure as the patient is in trying to obtain the voluntary assistance of another in his or her efforts.

Such a principle reflects both the self-limiting, yet individually sovereign, nature of property-based behavior. In restraining the over-reaching of both the doctor and the patient, such a principle fosters peaceful and orderly social practices. Without acquiring an understanding of this basic fact, we may very well find decision making about our health taken over by the modern state, which will tell us that we must submit to its mandated practices, as has been done by other tyrannical regimes. Unless we discover how our freedom is manifested in the authority we exercise over our own lives we may, like the feminists who wish to extend the state’s power of military conscription to include women, find ourselves mouthing the new catechism that state-compelled medical treatment is a “fundamental right!”

To understand how liberty, peace, order, and private property coalesce to produce social integrity, necessitates an inquiry into the nature of control. How property is controlled within a given society tells us whether the well-being of individuals or of institutions will have central importance; which will be regarded as their own reason for being. To control property is to control life itself. The remaining question is—as it was in the Dred Scott case—whether the living are to be considered their own property, or only the resources of others. Contrary to the habits formed from our materialistic and mechanistic culture, such questions will force us to begin inner conversations with the spiritual nature of our being. As social creatures, such inquiries will also require us to bring into the discussion our fellow humans, with whom we have long been in deadly and destructive conflict as a consequence of our mania to control one another’s lives. Once we learn the deeper significance of respecting the inviolability of our neighbors’ boundaries, we may discover a richer dimension to our humanity.