There are ‘critical’ intellectuals who question the validity of the institution of private property. They judge property ideologically, however, rather than from a factual perspective. Private property is not an idea imported from “the West”. It is a consequence of human nature.
Ownership means we have final authority over a thing. It turns things in nature into “property”. The first “things” we as human beings own are our bodies. As individuals, we have final authority over our own selves: only we can control our bodies, minds, and consciences because only we can be responsible for our actions. This exclusive control and responsibility creates an objective link between ourselves and our property right in ourselves. This is called self-ownership.
Land and objects are not sentient. Animals are unable to take responsibility for their actions. As things in nature, they, therefore, cannot own themselves. Human beings, however, can own things in nature. We, as lone individuals or groups or communities, acquire ownership over things – which become our property – when we establish an objective link between ourselves and the thing. That is private property.
That link is established most commonly by being the first person or persons to use the thing in question. The thing, or property, can be voluntarily transferred to another whose ownership is legitimised by the objective link of the first user and the first user’s subsequent voluntary transfer of the thing.
The link is “objective” because it is established by fact: first use, or voluntary transfer following from the first use. Any other link would not be objective as it might be based on a mere declaration of ownership or the forceful taking of the property. You cannot establish an objective link to property by taking it through force, as that would not establish final authority over the thing – the very act itself presupposes that no authority is final if taking the property through force is allowed. There would thus be no such thing as ownership or property, merely possession and things, given that anyone at any time might “legitimately” take the thing for themselves.
The comparably recent invention of so-called “public” property does not require such an objective link. In the hands of government, “public” property is the convenient tool used to claim ownership of unowned things or even already owned property simply because they are deemed by someone to be ‘in the public interest’. So-called ownership is then claimed through a fiat supported by the force of law. Many people in South Africa have made the mistake of supporting such an action because they conceive pre-colonial communal property to be essentially the same as statist public property.
Pre-colonial African communities enjoyed an objective link with their property and land, which they farmed and used daily, despite the fact that private property, as yet, was an unknown concept. The mere existence of the objective link, however, whether recognised or not, establishes private property. Communal property was, and is, private property. Public property, which is a misnomer, should be conceived of as government property; property acquired not through cooperation and peaceful means, by through force.
That communal and private property are not opposites is evident in the nature of the framework that private property provides: the owner(s) decide. Communities can be run and managed in whichever way they deem fit. If the community is the collective owner, it is unnecessary for every individual to have a title deed to a plot. Whatever the situation, what is required is that there is an objective link between the owner, or owners, and the property, and not some superficial legal instrument that “deems” the property to be owned by someone, usually government.
Private property has been vilified and reduced by certain intellectuals to mean no more than a title deed. A title deed and the concept of private property should not be confused. Deeds do not confer private property rights. They are the administrative tools that recognise an individual or community as the owner of a property. Properly understood, title deeds do not “commoditise” land, they simply recognise an already-existent state of affairs.
Programmes such as the Free Market Foundation’s Khaya Lam Land Reform Project, that seek to assist in the titling of urban township property, are not about stealing ground to create private property out of thin air (or at the expense of communal property), but rather giving due recognition to that which already exists. The drive to establish a link to things and acknowledge a responsibility to have authority over them is part of human nature. As long as criminal or State violence is kept in control, private property will always exist.
Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programs Director of Students For Liberty in Southern Africa