Reconceiving Private Property
| Date | 01 December 1997 |
| DOI | http://doi.org/10.1111/1467-6478.00056 |
| Author | Michael Robertson |
| Published date | 01 December 1997 |
INTRODUCTION
This paper explores a connection between law and economics, but not from
the conservative point of view that is familiar in jurisprudence today. Instead
I bring together the work of legal theorists in the realist and critical legal
studies (CLS) schools, and the work of political theorists and economists
writing in the market socialist tradition. It is my contention that the legal
writers provide some of the theoretical underpinning needed by the market
socialist project, while the market socialists provide concrete detail about
alternative social and legal arrangements which is missing from many CLS
analyses.
The central focus of the paper is property, and the viability of a market
socialist project to devise a different kind of private property and free market
system. At first sight, it is hard to see such a project as ‘socialist’. Socialism
is usually associated with the goal of
replacing private property and the free
market with social ownership and an economy consciously planned to meet
human needs. This is indeed typical of the Marxist strand of socialism, but
Marxism and socialism are not co-extensive. Market socialists accept that
market mechanisms should have a large role in a socialist economy, although
they differ on their approaches to property rights. One version of market
socialism argues that public ownership can be combined with market
mechanisms, while another moves even further away from the Marxist
position and embraces both the market and private property. It is this second
version which I am going to concentrate on in this paper.
This second version of market socialism seeks to rework the basic ground
rules of private property and the free market so that socialist end-states tend
to be produced naturally as a result of people freely exercising their newly
configured property and market rights. This market socialism is therefore
distinguishable from an approach which relies more upon ex post facto
rejigging by the state of an already existing end-state. The familiar left-liberal
and social-democratic models tend to favour this approach: they generally
© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Senior Lecturer, Faculty of Law, University of Otago, Box 56, Dunedin,
New Zealand
465
JOURNAL OF LAW AND SOCIETY
VOLUME 24, NUMBER 4, DECEMBER 1997
ISSN: 0263–323X, pp. 465–85
Reconceiving Private Property
MICHAEL ROBERTSON*
466
© Blackwell Publishers Ltd 1997
leave capitalist ground rules for private property and the market in place,
but then seek to alter the end-states produced when these institutional
structures play themselves out. The market socialist project which I shall
describe in this paper relies far more on ‘private’ mechanisms than ‘public’
action to achieve the end-states it desires, but its supporters are always clear
that some role for the state in taxation, redistribution, and planning will still
remain.1
Why is it appropriate to link CLS to this version of market socialism,
rather than a more traditional ‘left’ position on property? In the first place,
it fits well with the CLS approach to social change. In his paper, ‘The Critical
Legal Studies Movement’, Roberto Unger repeatedly stresses the method of
not rejecting the central organizing concepts of a society, but rather seeking
to give them a different content. He refers to this variously as ‘internal
development’, or ‘revolutionary reform’, and is adamant that it can lead to
significant social change, not merely reformist tinkering.2The version of
market socialism which retains the central concepts of private property and
the free market, but which seeks to reconceive them in ways which advance
socialist ends, obviously accords well with Unger’s CLS methodology. As
well, there are more direct connections between CLS and this version of
market socialism. As we shall see, a number of important CLS writers have
explicitly endorsed the project of reconceiving private property, and a few
have even attempted to carry that project forward by providing detailed
models.
There are good strategic political reasons today for CLS property theorists
to support a market socialist project which seeks to maintain an important
role for both private property and the free market. The failure of Soviet-
style Marxism has probably crippled any attempt to advance the notion of
widespread public ownership for some time ahead, even public ownership
as part of a market socialist economy. Recently the ‘interventionist’ methods
of the welfare state have been coming under strong attack too. The defenders
of private property and the free market are in the ascendancy today, and I
suspect that any changes to existing arrangements will only succeed if they
can shelter under these same banners. I conclude that any CLS analysis of
existing property arrangements which is to go beyond critique, and set out
politically realizable alternatives, is likely to embrace some form of the
market socialism described in this paper.
OBJECTIONS TO THE PROJECT OF RECONCEIVING PRIVATE
PROPERTY
This market socialist project involves interesting challenges in the areas of
property rights and property theory. One challenge is the detailed
specification of how property rights and market rights would change from
what we are familiar with now. I will describe one response to this challenge
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