Property and Freedom: Those Who Saw What Was Coming


May 25, 2007


Browse in Commons Freedom Intellectual Property

In my last post I reflected on how an excessive assertion of property rights can turn this supposed bulwark of freedom into a threat to it.  Intellectual property is an especially virulent example. Ideas by their very nature suffuse everything; so in the name of protecting intellectual property rights the state could inject itself into just about everything.  A recent example is the proposed Intellectual Property Protection Act of 2007, in which Alberto Gonzalez, the attorney general, is seeking new authority to tap our phones and otherwise trespass into our lives.

If Mr. Gonzalez had any historical awareness – let alone self-respect – he would know that the early writers on human freedom were worried about precisely the issues his proposal raises. Would love of lucre undermine the freedom that made prosperity possible?  Would the protection of property become the entering wedge for the very tyrant that property was supposed to check?  When freedom was still a live idea, rather than an encrusted doctrine and polemical cudgel, people were alert to the danger that the commercial version of it could spawn.

An example was Adam Ferguson, who was a prominent figure in the Scottish Enlightenment, and a friend of both David Hume and Adam Smith.  In his Essay on the History of Civil Society, which he wrote in 1767, just before the American Revolution, he laid out the reasons that tyranny could arise from a preoccupation with property and wealth. The ancient concern over the corrupting effects of luxury and convenience were just the start.

At a deeper level, he said, the holders of great wealth tend to fear the loss of it, and so are inclined to support repressive government to forestall that possibility.  (The Wall Street Journal editorial page plays expertly to this fear today with its chronic hysteria over taxes.)  At the same time, the commercial values of efficiency and order can trump the civic values of democracy and freedom:

When we suppose government to have bestowed a degree of tranquility, which we sometimes hope to reap from it, as the best of its fruits, and public affairs to proceed in the several departments of legislation and execution, with the least possible interruption to commerce and lucrative arts; such a state…is more akin to despotism than we are apt to imagine…

Liberty is never in greater danger than it is when we measure national felicity…by the mere tranquility which may attend on equitable administration. (Pp 268-269.)

Ferguson is using “equitable” here in the old sense of pertaining to courts of equity and natural law, not in the modern sense of fairness to all levels of income and wealth.  As Albert O. Hirschman points out in The Passions And The Interests (a wonderful book upon which I rely heavily here) his argument was something of a breakthrough.  Previously most writers had assumed that people of wealth would be “formidable to those who pretend to dominion,” as Ferguson himself put it.  But now the opposite possibility was occurring – namely, that those who claim dominion might be in league with those of great wealth.

It is hardly news that the authoritarian and the corporatist can be the same person. There are numerous examples in the 20th century; and in the White House today.  Another who saw this coming, on America’s own soil, was Tocqueville.  Like Ferguson, Tocqueville acknowledged the apparent tie between “freedom and industry.”  In the womb they appear mutually reinforcing.  But then the latter can start to consume the former:

There is, indeed, a most dangerous passage in the history of a democratic people.  When the taste for physical gratifications among them has grown more rapidly than their education and experience of free institutions, the time will come when men are carried away and lose all self-restraint at the sight of the new possessions they are about to obtain. In their intense and exclusive anxiety to make a fortune they lose sight of the close connection that exists between the private fortune of each and the prosperity of all.

…[M]en who are possessed by the passion for physical gratification generally find out that the turmoil of freedom disturbs their welfare before they discover how freedom itself serves to promote it.  If the slightest rumor of public commotion intrudes into the petty pleasures of private life, they are aroused and alarmed by it.  The fear of anarchy perpetually haunts them, and they are always ready to fling away their freedom at the first disturbance. (Democracy In America Vol 2 Bk 2 Ch. XIV)

Tocqueville is combining two arguments here – the dissipating effects of wealth and the gnawing fear of losing it. Neither goes directly to the expansion of intellectual property rights today; but both are preconditions for it.  Seize upon a monopoly privilege that the government has created. Redefine it as a property right  and enlarge it without limit. Accumulate a vast fortune contingent upon this expanded right, and therefore upon the inviolability of it.

Inevitably an Alberto Gonzalez is proposing to tap our phones and seize our computers in order to protect it.  The knock on the door comes not because we have taxed the “formidable” interests into decrepitude but rather because they themselves have sicced the police upon us.  In that case our bulwark is not more private rights but rather a countervailing common right — to a public domain of knowledge for example — that can keep the police away.

It is not accidental that Thomas Jefferson, America’s great champion of freedom, was a champion of the public domain as well.  Freedom and industry may have an up-and-down marraige; but freedom and the free open spaces of creativity and knowledge are together for life.