During the English Revolution of 1649, the Levellers considered individual property-in-the-person to be the foundation of constitutions, and not vice versa.27 In his Appeal of July 1647, the Leveller Overton proclaims: “To each person living on earth is naturally given an individual right of property that no one has the right to violate or usurp, for what makes me what I am is that I am owner of myself. Without possession of myself, I would not be me. No one has power over my rights and liberties; and I have no power over the rights and liberties of others.” To be free is to own oneself and, by extension, the means and the products of one’s labor.28 The Levellers’ point of departure is not, therefore, a critique of property, but rather a conception of equality buttressed by a theological argument. At the meeting of October 1647 in Putney, under the chairmanship of Cromwell and his son-in-law [Henry] Ireton, the main controversy turned on the decision over whether to restrict voting rights to the propertied. The Leveller Sexby was indignant: “There are many thousands of us soldiers that have ventured our lives; we have had little propriety in the kingdom as our estates, yet we have had a birthright. But it seems now, except as a man hath a fixed estate in this kingdom, he hath no right . . . I wonder we were so much deceived.”29 Another Leveller, Rainsborough, adds: “I see that it is impossible to have liberty but all property must be taken away. If it be laid down for a rule, and if you will say it, it must be so. But I would fain know what the solider hath fought for all this while? He hath fought to enslave himself, to give power to men of riches, men of estates, to make him a perpetual slave. We do find in all presses that go forth none must be pressed that are freehold men.”30 The critique of property derives from the defense of freedom and equality, leading to a distinction between property in the person and “property as a form of goods.”
In 1649, the radicalization of the revolutionary process led to a new core issue: what the Levellers would do regarding the ancient right of the poor and the restoration of communal lands for the benefit of the poor. The indictment of the “unmasked Tyranipocrite,” dated August 14, directly involves the collusion of power and property: “The powerful shall be mightily punished, for the sins of the rulers are multiple and unacceptable: do you not steal, you who command others not to steal? Do you not remain idle, you who order others to work? Are you not proud, you who would teach others humility? These rich and clever thieves do not operate along the roads to seize our purses, nor sneak through our windows. They have found a more cunning and unholy way to steal than even we poor fools. They think they are safe, since the law and the executioner serve them and dare not hang them. Since they are thieves by Act of Parliament, they are not thieves at all! Indeed, all they steal and rob is their own, according to the law of the jungle. If necessary, they can even present you with all the parchments stating that such and such country, city, town, village, land, or house ultimately belongs to them anyway.” In his address the same year in the House of Commons, Peter Chamberlen claimed the following for England’s poor: “(1) What remains of the lands, goods and tenures; (2) All that is owed on the public accounts; (3) All that is actually due to the poor in wild lands, forests, heaths, moors, hunting lands . . . (4) And all mines not being exploited, any flooded land or captured from the sea.”31
In response to this great revolutionary shock, Hobbes sought to shield private property from its detractors in the name of an egalitarian natural right, a secularized form of the equality of creatures before God. For Hobbes, property is an institution founded and guaranteed by the state:
Seventhly, is annexed to the sovereignty, the whole power of prescribing the rules, whereby every man may know, what goods he may enjoy, and what actions he may do, without being molested by any of his fellow-subjects: and this is it men call propriety . . . The distribution of the materials of this nourishment, is the constitution of mine, and thine, and his; that is to say, in one word propriety; and belongeth in all kinds of commonwealth to the sovereign power. For where there is no commonwealth, there is (as hath been already shown) a perpetual war of every man against his neighbour; and therefore every thing is his that getteth it, and keepeth it by force; which is neither propriety, nor community; but uncertainty . . . A fifth doctrine, that tendeth to the dissolution of a commonwealth, is, that every private man has an absolute propriety in his goods; such, as excludeth the right of the sovereign. Every man has indeed a propriety that excludes the right of every other subject: and he has it only from the sovereign power; without the protection whereof, every other man should have equal rights to the same.32
All the same, Hegel will later affirm in the Principles of the Philosophy of Right the primacy of the “right of necessity” [le droit de détresse] over the right of property:
In extreme danger and in collision with the rightful property of someone else, this life may claim (not in equity, but as a right) a right of necessity; for the alternatives are an infinite injury [Verletzung] to existence with total loss of rights, and an injury only to an individual and limited existence of freedom . . . From the right of necessity arises the benefit of competence, whereby a debtor is permitted to retain his tools, agricultural implements, clothes, and in general as much of his resources—i.e. of the property of his creditors—as is deemed necessary to support him, even in his accustomed station in society . . . Such necessity [Not] reveals the finitude and hence the contingency of both right and welfare—of the abstract existence [Dasein] of freedom as distinct from the existence [Existenz] of the particular person, and of the sphere of the particular will as distinct from the universality of right.33
This right of necessity is therefore not a “gracious concession,” a public and compassionate form of charity, but rather an enforceable right to property in situations of social urgency.
In his support of the Moselle correspondent for the Rheinische Zeitung over against von Schaper, the president of the provincial assembly, Marx also uses the term “necessity” [détresse]. In the article of January 15, 1843, he defends the rough style of those who “perceive immediately and frequently the pitiless voice of indigence wherever the people are found.” This is where “political duty” publicly takes up the “popular language of necessity [détresse].”
In Marx’s articles on the theft of wood and on the situation of the Moselle wine growers, the question of property reveals above all the contradictions at work in the relationship between civil society and the state. Marx addresses these contradictions from a liberal-rationalist point of view, however. In Hegelian fashion, he highlights the fact that the inconsistencies of the modern state stand behind the question of law, inconsistencies that undermine its claim to universal rationality: “If it becomes clear here that private interests have reduced the state to a mere medium of private interest, does it not follow that the representatives of private interests (the social estates or Stände) want and need to cut back the state in the name of that interest? Every modern state that conforms so poorly to its very concept will be forced by the first practical test of its legislative power to exclaim: ‘Your ways are not mine and your ideas are not mine!’”
This practical refutation of the claims of the modern state is revealed to be true through the inversion of its supposed relation with civil society. Far from embodying the public interest through legislation, such as concerns the theft of wood, public authorities put themselves at the behest of private interests. By reducing itself to the aggregative sum of the contractual relations woven into civil society, the state contradicts the superior rationality attributed to it by Hegel: “But the state is by no means a contract, and its substantial essence does not consist unconditionally in the production and safeguarding of the lives and property of individuals as such. The state is rather that higher instance which may even lay claim to the lives and property of individuals and require their sacrifice.”34 This reduction of the state to a sum of private contractual relations is manifestly revealed for Marx by the system of sanctions imposed by the law on “culprits” of forest crimes. By requiring the payment of fines directly to the owner or, failing that, the carrying out of forced labor in his service, a public penalty is transformed into private compensation: “Could the forest owner get better insurance for his wood than he does here, whereby crime was converted into an annuity? A clever general, he converts an attack upon him into an infallible opportunity for spoils of war.” In the exercise of its sovereign function, the state then behaves as common insurer of the owners. “Punishment as such, the restoration of the law, which must certainly be distinguished from restitution of the value and compensation for loss, the restoration of private property, is transformed from a public punishment into a private compensation, the fines going not to the state treasury, but to the private coffers of the forest owner . . . The wood possesses the remarkable character such that as soon as it is stolen it secures for its owner state qualities it did not previously possess . . . The wood thief has robbed the forest owner of wood, but the forest owner has used the wood thief to steal the state itself.”35
The case of wood theft thus provided Marx with the opportunity to draw general conclusions about the reality of the state and its functions vis-à-vis civil society. The Rhineland parliament had not failed in its mission of embodying the general interest. On the contrary, it “fulfilled its mission perfectly”: “Conforming to its vocation, the assembly represented a particular, determinate interest and treated this as its final end. That it trampled upon the law was simply the consequence of its duty, because interest is, by its nature, a blind instinct, without limits, partial, in a word, beyond the law.” Even if he declared that he followed these “insipid and bland debates” only “with repugnance,” Marx still did not regret the time he devoted to them. The challenge was worth it. The aim was to discover and show by example that “what one could expect from a meeting of the estates (Stände), an assembly of special interests, if it was called upon to legislate seriously.” Contra this type of corporate meeting, Marx mounted a passionate defense of universal suffrage, at the risk of underestimating the fact that such suffrage can also achieve, in more devious and less visible ways, “an assembly of special interests.”
In good liberal-rationalist manner, when faced with the mystification of a state founded upon a false universality and rationality, Marx assigns in his texts from 1842–43 a major role to civil society via freedom of the press and the constitution of a public sphere for the confrontation of opposing social interests. This theme will return later but will be transformed into the prospect of a “withering away of the state,” not by its dissolution—or that of law itself—into “bourgeois civil society,” or by the disappearance of the political into the administration of things, but by the effective supersession of the great modern split between civil society and the state, economics and politics, private and public, the rights of man and the rights of citizen, political revolution and social revolution.
Prior to the major turning in Marx’s political formation represented by the censorship of the Rheinische Zeitung and the 1844 Annales Franco-allemandes essays, the articles on the theft of wood constitute Marx’s first foray into the controversies (then in full swing) over the definition and boundaries of property. Proudhon’s 1840 text What Is Property? was one of the most famous polemics of the time, while Édouard Laboulaye’s A History of Property had also just been honored by the Académie Française (1838).36
In the seventeenth century, with the English and Dutch revolutions, transformations in property and the emergence of a new balance between public and private had become a burning issue. The French Revolution constitutionally sacralized property, which, in the liberal revolutionary spirit, was considered the foundation and guarantee of the individual freedom of citizens. It was, however, immediately desecrated again by the fact of being opposed to a right of existence, especially via the establishment of price restrictions on bread and basic necessities imposed under the pressure of la sans-culotterie in the Year II.37 By contrast, because its very legitimacy had become problematic, the Napoleonic Civil Code attached itself all the more to an expansive definition of property right, “a fundamental right on which all institutions are based.” Section 544 of the code declared property the “right to enjoy and dispose of things in the most absolute way” under the law. It thereby produced constraints and limits on customary and familial rights through property law.
The debate rebounds all the more beautifully after the great bourgeois panic of June 1848. In September of that year, Thiers published his memoir, On Property, which defined private property as the foundation of an unlimited, exclusive, and absolute right, subject to the will of a person, and belonging to the proprietor “to the exclusion of all else.”38 The triumph of this Thermidorian conception of property was the revenge of the victors of June 1848 over the spirit of Rousseau, who had inspired the members of the National Convention (les Conventionnels) in the turmoil of 1793.39 The Discourse on the Origins of Inequality thus haunts the revolution: “The first person who, having enclosed a plot of land, took it into his head to say this is mine and found people simple enough to believe him, was the true founder of civil society.”40 As a social institution, property has a history and its concept “does not form all in one stroke in the human mind.” The perennial right of the producer to the means and the products of his labor had been “readily converted” into the simple ownership of property. This formed a new sort of right, a “property right differing from that arising in natural law.” In historicizing the concept of property, Rousseau problematizes its legitimacy. His text conveyed the underlying supposition of the laws (as well as the imagined original social contract) as that which “gave new barriers to the weak and new powers to the rich, irrevocably destroyed natural liberty, and forever solidified the law of property and inequality.” As such, it marked a true epochal shift.
Compared to the attempts to found the legitimacy of property upon a natural right of appropriation through occupation or labor, Rousseau’s inversion is radical. Property rights are, for Rousseau, nothing but “a human convention and institution.” Accordingly, although “every man can dispose of what he possesses as he sees fit . . . it is not the same for the essential gifts of nature such as life and liberty, which everyone is allowed to enjoy, and of which it is at least doubtful that one has the right to divest himself.”41 This positions the inalienable right to existence (to “life”!) against any right to private property.
The very meaning of the concept of property was thus transformed, gradually and in proportion to the extension of market relations, as capital penetrated into the sphere of production and separated the worker from the means of production. For early liberalism, this signaled the founding of individual autonomy and the transition from feudal subjection to modern citizenship. For rapidly maturing capitalism, this signaled the right to private appropriation of the means of production and the dispossession of the worker, not only from his land or his tools, but his own personhood, which he was then forced to sell at market. It is this contradiction, registered in the multiple meanings of the word property itself, which Proudhon laid bare in his 1840 essay, in which he sought to rebut the dual legitimation of private property by occupation and labor, by demonstrating that the first prevents property and the second destroys it. He defined the right of occupation as “a natural method of dividing the earth among labourers as fast as they appear.” But if every man has a natural right to occupation of the earth simply because he exists, “it follows that the quantity of material which each labourer may claim varies with the number of occupants.” Since the right of occupancy is “always subordinate to population,” it can therefore “never remain fixed, and so it is impossible for it to ever become property.” The right of occupancy is thus condemned to disappear “if it is in conflict with the public interest, which, being the social interest, is also that of the occupant.”42
That’s why jurists have abandoned the theoretical defense of the right of occupancy to focus instead on labor as that which gives rise to property. This legitimation of property through work is in effect at the heart of Locke’s Second Treatise of Government:
Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.43
Proudhon basically replies that if labor is the foundation of property rights, then no one should be able to be dispossessed. However, basing the right to private ownership on labor is not a universalizable principle. The exclusive property of each has as its necessary corollary the privatization of others’ property. Why, asks Proudhon, “is the benefit of this so-called law confined to a few and denied to the mass of labourers?” Accordingly, he challenges the owner who claims that the legitimacy of property derives from his labor: “You have laboured! Have you never made others labour? Why, then, have they lost in labouring for you what you have gained in not labouring for them?” A deadly question, to which Proudhon provides his famous response: “Property is theft! This is the warning bell of 93! The clamour of revolutions!”44
If the principles of liberty, equality, and security proclaimed by the revolutionary constitutions are absolute rights, then property is a right that, by contrast, stands outside and opposes society. If it is a natural right, then it is an “antisocial” one: “Property and society are completely irreconcilable with one another. It is as impossible to associate two proprietors as to join two magnets with their opposite poles. Either society must perish, or it must destroy property . . . In sum, property, after having robbed the labourer by usury, murders him slowly by starvation. Now, without robbery and murder, property cannot exist; with robbery and murder it soon dies for want of support. Therefore it is impossible.”45
The critique of property is thus at the very birth and heart of all variants of socialism that arose in the nineteenth century in resistance to triumphant capitalism. It is not surprising then to find that Marx, led to take an interest in the topic for the first time by the Rhineland debates on the theft of wood, praises Proudhon’s essay in The Holy Family as “a major scientific breakthrough,” of comparable importance to him for modern politics as Siéyès’s famous pamphlet on the third estate.
The contradiction inherent in the idea of private appropriation effectively led Proudhon to establish a basic distinction between possession and property, and to challenge the historical transition from one to the other: “In order to change possession into property, something is needed besides labour, something without which a man would cease to be proprietor as soon as he ceased to be a labourer.”46 Implacable logic. The distinction between possession and property helps dispel the confusion attached to the double definition of property, as both “a domain and a possession.” For jurists, possession is a fact; property is an institutionalized right. The argument that property rights are founded upon labor privatizes possession. By contrast, in primitive legislation, the metamorphosis of the possessor into proprietor was “legally impossible.” The first farmers, who were the first lawyers, did not foresee “the consequences of the transformation of private possession into property.” It was enough for them that their possession of the harvest was guaranteed. Everything would have started therefore with “continuous possession” and its perpetuation. For, “when the law declares that the lapse of time turns the possessor into a proprietor, it supposes that a right can be created without a cause that produces it.” Law thus exceeds its powers: public order and the security of citizens requires only “a guarantee of possession.”47
Moreover, even if recognized, the property of the producer over his product “does not mean property in the means of production; this seems to me to need no further demonstration. The soldier who possesses his arms, the mason who possesses the materials committed to his care, the fisherman who possesses the water, the hunter who possesses the fields and woods, and the cultivator who possesses the lands are all the same: all are, if you like, proprietors of their products, but none is proprietor of the means of production. The right to the produce is exclusively jus in re, the right to the means is common, jus ad rem.”48
Marx often seems to take over the distinction between possession and property. It was from this distinction that Paul Sereni, in a book of remarkable rigor, elucidates the mysteries of the distinction between private property and individual property contained in Book I of Capital. Sereni notes that, in the 1840s, “the dispute over property is really an extension and working out of the question of the predicate ‘private’ as an object of analysis.” As early as The German Ideology, Marx and Engels point out that private property gradually became identified with property as such. It was thus transformed into an “abstract concept,” permitting one to avoid having to say anything about “real private property.” This ideological confusion hypostatizes the category of property and still serves today as the apologetic argument of the defenders of capital, making us believe that challenges to the private ownership of the means of production, exchange, and communication threaten individual possession. However, the private property that is subject to abolishment is only that “private and exclusive” form that Destutt de Tracy defines as that which “gives the power over work to others.”49
In The Holy Family, Marx enthusiastically salutes Proudhon’s essay. Their meeting in Paris nevertheless resulted in a rupture, consummated in 1847 by the sharp response of The Poverty of Philosophy to The Philosophy of Poverty. This was not the result of a change of mood between two men of incompatible temperaments but the result of Marx’s theoretical maturation, which led to a much more elaborate critique of property, now enshrined in the communist perspective he gradually made his own.50
In The Philosophy of Poverty, Proudhon returns to the themes of What Is Property? He strives to incorporate a broader vision of political economy. It is, he writes, “the biggest problem that reason can pose,” because property is “essentially contradictory.” It combines the right of occupation and the right of exclusion, a price or reward for work and its negation for those one might call the nonpropertied [les impropriétaires], a claim to justice and a legalization of theft. And with the development of credit, that prodigy of money that makes money, the speculator is enriched while he sleeps while the producer gets played. It combines the “fanaticism of competition” with the “fury of roulette.” Certain passages from Proudhon have a strange contemporary resonance. Now, the producers “are known only as borrowers and money lenders, winners and losers”: “Work has been blown away by the breath of credit, real value vanishes before fictive value, production falls before speculation . . . Credit releases capital in the end by releasing man from society and from nature. In this universal idealism, man no longer holds ground; he is suspended in the air by an invisible power.”51 Pushed to these ultimate conclusions, property reveals its “unsocial” character and discloses that, in its simplest expression, it is nothing more than the “right of force.”
The theoretical dispute arises because, beginning with his Paris Manuscripts of 1844, Marx had undertaken to solve the mystery of surplus value and the accumulation of capital. His framework was turned upside down. The dispute focuses primarily on the illusion of equitable remuneration for work, based on its true value. For Marx, elementary individual work is at once social work, which presupposes a prior social accumulation of knowledge and expertise. While Proudhon opposed the virtues of original work to the misery of bonded labor—“real value” to “fictitious value,” production to speculation—Marx discovered the contrary: the unity of concrete and abstract labor, of exchange- and use-value, the open secret of the commodity and the enchanted world of capital. While Proudhon contrasted the ideal of the small independent producer to “impersonal property” as “the worst form of property,” Marx does not pine for these pastoral figures and considers as merely illusory the idea of reward at fair value, with good hours, for the work of each. Why? Because knowing whether “your hour of work is worth the same as mine is a question decided by competition!”
In other words, the price of the labor force cannot be determined a priori by the measure of its value, but only a posteriori by competition in the market: “What determines value is not the time in which a thing is actually produced, but the minimum time in which it is capable of being produced, and that is determined by competition.”52
The alternative to the rule of capital imagined by Proudhon appears as a new chimera, parallel to the utopias he claims to fight. His “theory of mutuality,” conceived as “a system of guarantees” that “turns competition into a benefit and monopoly into a guarantee of security for all,” and his philanthropic call for a “sincere exchange” (today, one would say “fair”) are at best nonsense and at worst an attempt to turn back the wheel of history. So it is not surprising if this theory of mutuality translates in practice into an apology for in-kind bartering and consumer lending, which is presented as a “synthesis of property and community.”53
Marx’s reply is scathing: “Troy has fallen. A fair proportion between supply and demand has long since ceased to exist.” Previously, demand determined supply and preceded it: “production followed consumption step by step.” Now “production precedes consumption, and supply drives demand.” In the Proudhonian fantasy of equitable exchange, the costs of production would be expected to “determine the value of the product in all cases, and value would always be exchanged for equal worth.” The labor of each individual would therefore be “the only measure of his profits and losses.” An hour of Peter’s work would simply be traded for an hour of Paul’s: “this is the fundamental axiom of M. Bray.” M. Proudhon’s ranting replicates this pattern: “So if we suppose that all members of society were immediate producers, the exchange of equal amounts of hours is only possible if we all agree in advance the number of hours required in material production. But such an agreement denies individual exchange.” Specifically, “social relations are not relations between one individual to another,” but between worker and capitalist, farmer and landowner, and so on: “Wipe out these relations and you annihilate all society.”54
In capitalist society, the question of property cannot be detached from the private appropriation of the surplus labor of others, that is, the issue of exploitation. Society is not reducible to an aggregation of individuals or “immediate producers.” It is a relation between antagonistic social classes. Even before the famous phrases of the Communist Manifesto, written at the end of the same year 1847, Marx summarizes in The Poverty of Philosophy the conflictual engine of historical change: “The very moment civilization begins, production begins to be founded on the antagonism of orders, estates, classes, and finally on that antagonism of accumulated labour and actual labour.”55 The practical conclusion he draws from this is the polar opposite of Proudhon. For Proudhon, “working coalitions” are as harmful as the corporations of the ancien régime and the fact that workers have “lost the habit” of them must be seen as progress.56 For Marx, on the contrary, the mass of workers, “which is already a class against capital, but not yet for itself” gathers together in struggle and thereby “constitutes itself as a class for itself”: “The interests it defends become class interests. But the struggle of class against class is a political struggle.”57
In an article in 1865 on the occasion of Proudhon’s death, Marx returns to his initial critique with greater clarity. Meanwhile, his framework has been considerably strengthened through the construction of Capital. He now considers the title of the 1840 essay on property as already indicative of its “inadequacy”: “The question is so badly formulated it cannot be answered correctly . . . [H]istory itself had expressed its criticism upon past property relations. What Proudhon was actually dealing with was modern bourgeois property as it exists today. The question of what this is could have only been answered by a critical analysis of ‘political economy’, embracing the totality of these property relations, considering not their legal aspect as relations of violation but their real form, that is, as relations of production.” As for The Philosophy of Poverty, Marx criticizes Proudhon for having shared in the “illusions of speculative philosophy”: “Instead of regarding economic categories as the theoretical expression of historical relations of production, corresponding to a particular stage of development in material production, he garbles them into pre-existing eternal ideas, and how in this roundabout way he arrives once more at the standpoint of bourgeois economy.”58
This radical critique leads to a rejection of the definition of property as theft, which remains a legal or moralistic conception: “In the best cases, bourgeois juridical notions of ‘theft’ are equally applicable to ‘honest’ profits. On the other hand, as theft, the violation of property presupposes property. Proudhon was embroiled in all sorts of confused ramblings about true bourgeois property.” Instead of considering property an illegitimate legal category like most French socialists of the time, Marx’s analysis, starting with The German Ideology, views it as a “necessary mode of relating to a stage in the development of productive forces.” He thus came to relativize and secularize a notion of justice whose definition varies historically. There is therefore little sense in declaring exploitation unfair, or in denouncing property as theft, without greater precision. These are actually two conceptions of law that have come to clash, the rights of the property owners against the rights of the owned. Only force can decide between them.59