From Private Property to Common Access

► This interview belongs to the workshop  "Actuality of normative political philosophy"

Pierre Crétois is a lecturer in political philosophy at Bordeaux-Montaigne University and he is a member of the SPH research team. He works on the history of political philosophy and on contemporary issues concerning the justifications of property rights, their limits and their possible overstepping. In addition to articles on the subject, he published, in 2014, Le renversement de l'individualisme possessif. De Hobbes à l’Etat social (The Reversal of Possessive Individualism. Hobbes to Welfare State), and, in 2020, La part commune (The Commun Share), in which he manages to produce a theory of property. The objective he now pursues is, beyond criticism of the property ideology, to think of a theory of distributive justice based on a renewed conception of appropriation regimes.

 

This interview was conducted by Luc Foisneau, in Paris, at the EHESS Audiovisual Center, 96 boulevard Raspail, on May 17, 2019.

Réalisation : Serge Blérard

Luc Foisneau : Could you tell us why you chose to work on the theme of ownership and what are the stakes of a philosophical reflection on this issue today?

Pierre Crétois : The first striking thing about property is its definition within the French Code civil in Article 544. I see a contradiction in it, perhaps by projecting a philosophical questioning into it. This article affirms, firstly, that property is a “right to enjoy and dispose of things in the most absolute manner” and, secondly, it adds the following precision: “provided that one does not make use of it in a manner prohibited by laws or regulations”. There is a tension that structures the legal definition of the right of ownership, and it is this tension that struck me: on the one hand, the strong affirmation of its absolute nature and, on the other, the highlighting of its relativity to the laws and regulations that govern it.

 

Moreover, within the Declaration of the Rights of Man and of the Citizen of 1789, a phenomenon of the same type can be identified. On the one hand, freedom is posed as having limits - it consists in doing “all that does not harm others” - and on the other hand, the right to property is posed as an “inviolable and sacred” right, without any limit being stated.

 

Here I saw something like the lineaments of a proprietarian ideology understood as the right to be separated from the rest of society by fences and a whole series of devices. In this ideology, I saw a fundamental structure: the exclusion of third parties. In opposition to this sacralization of private property, today we observe that the aspiration to become an owner tends to diminish in favor of an aspiration to enjoy the functionalities and uses of things without going through the appropriation of things themselves. We can think of the sharing economy, of which services such as vélib' (shared bikes in Paris) is emblematic, however criticizable these services may be; we know, in fact, that the capitalism of digital platforms benefits from this new relationship to property. More generally, what interests me is the type of relationship one has with the material world nowadays.

Luc Foisneau : How would you characterize this transformation of the contemporary self in its relationship to property? What is the nature of this change?

Pierre Crétois : We seek less to enjoy things through their material appropriation than to relate to them as supports for experiences, sources of fulfillment or satisfaction of needs.

Luc Foisneau : You insist on the transformation of our relationship to things. Do you see a parallel transformation in our understanding of the notion of use, when it comes, for example, to thinking about our relationship with digital services?

Pierre Crétois : I am dealing less with the question of use than with that of access. I have tried to theorize this in the wake of Jeremy Rifkin's seminal work, The Age of Access (2001)1. He argues that the traditional economic world was structured by the conceptual couple of property and the market, that is, the exchange of material goods in a market, whereas the contemporary world would be more structured by the conceptual couple of access and network, that is, the distribution of access in networks. What each of the agents is looking for is not so much monopolization, material appropriation, as access to things as conditions for fulfilment, and so it is no longer a question of appropriation, but rather of managing access to resources without going through an appropriation that could be called private.

 

Luc Foisneau : I would like to come back to the starting point of your reflection, which is not an analytical starting point but a historical starting point. In 2014 you published a book entitled Le renversement de l’individualisme possessif. De Hobbes à l’Etat-social (The Reversal of Possessive Individualism. Hobbes to the Welfare State). Could you explain to us the meaning of this reversal and the place of the Welfare State in your project?  

Pierre Crétois : I first started from the intuition of C. B. Macpherson in The Political Theory of Possessive Individualism: Hobbes to Locke2. Macpherson defends the thesis that, for a certain number of English political philosophers of the 17th century, the individual would originally be the owner of himself and that, basically, he would be indebted to no one but himself for what he has and what he is. This is my summary, no doubt too synthetic, of Macpherson's intuition.

Luc Foisneau : Could you tell us how this intuition finds its source more in a reading of Locke than of Hobbes, and how this remark leads to nuance the results of Macpherson's work?

Pierre Crétois : I was struck by the fact that Macpherson adds to his general hypothesis, a second hypothesis which is that the authors he refers to are all theorists of the market society before their time. Now it seems to me that, while this intuition may work well for Locke, with certain nuances that I will not go into here, it is not relevant in the case of Hobbes. Locke's intuition, in chapter 5 of the Second Treatise of Government3, is the idea that the right of ownership is a natural right, that one acquires property by one's own labour alone and that, as a result, one deserves what one has and that, in the end, one is accountable to no one because the right of ownership is, from the state of nature, fully constituted. The result, as Macpherson notes, is that the function of the state is entirely subordinate not only to the preservation of material property, but also to what he calls property in the broadest sense, that is, to everyone's ownership of his existence, his freedom and his goods. 

 

In the course of my research, I came across a seminal article by Étienne Balibar entitled “Le renversement de l'individualisme possessif” (The Reversal of Possessive Individualism), a contribution to a colloquium organized at Cerisy in 19994. In this article Étienne Balibar explains that, for Rousseau in particular (he talks mostly about Rousseau and Marx), what is foundational to politics is not the fact that it must preserve properties that predate it, but rather a movement of initial dispossession. He cites as proof of this the fact that Rousseau, in Chapter 6 of Book I of On the Social Contract, indicates that each one gives himself entirely to the general will. And he calls this, in French, “alienation totale”5. There would thus be a moment of dispossession at the basis of politics. I hand over to the supreme leadership of politics everything I thought I had before its institution, so that it may determine the rules of use and ensure their full legitimacy. It seemed to me that this intuition was already present in Hobbes, even if Hobbes does not speak of “alienation totale” because there is still something left to each person of the right of nature after the institution of the political. But it does not prevent it: one hands over to the sovereign all the rights that one could have to the state of nature, and it is up to the sovereign to determine what each person is entitled to. As with Rousseau, the role of the Hobbesian sovereign is not to guarantee rights that would be prior to him, but to establish rights, notably that of property6.

 

I started from this intuition, which seemed to me to be very fruitful, of the reversal of possessive individualism - there is indeed a possessive individualism in the state of nature, but it must be reversed to make way for the reign of the political - and, to go a little further in political thought, I saw in it a first distant anticipation of the welfare state. Be that as it may, the idea of possessive individualism, according to which I would be indebted to no one for what I have and what I am, was challenged at the end of the nineteenth century, notably by authors who were called “solidarists," who were the first thinkers of the French Welfare State state.

 

Luc Foisneau : You're thinking of Léon Bourgeois, I guess …

Pierre Crétois : About Léon Bourgeois7, but also about Alfred Fouillée8. They are two authors who can be classified as solidarists. The solidarist movement is both philosophical and political, belonging to the radical and republican political sensibility of the second half of the 19th century in France. Inspired by nascent sociology, it rejects the individualist illusion that it attributes to liberalism and insists on the dependence of the individual on social structures. This is why, whether they call it “social property” (Fouillée) or “social debt” (Bourgeois), the solidarists insist on the irreducible existence of a social share in all that we privately appropriate and on the impossibility of claiming any property whatsoever outside the social framework.

Luc Foisneau : These are authors Jean-Fabien Spitz talked about at length in Le Moment républicain en France (Republican Moment in France)9.

Pierre Crétois : Rightly so. You are right to point out the existence of this very important book on French republicanism and, in particular, its link with the Welfare State. The idea of the solidarists is to find a third way between, on the one hand, liberal individualism and, on the other hand, socialist collectivism — that's how they formulate it. Fouillée says that, in order to have what I have, I depend on social cooperation and natural resources that are not initially mine and that I receive, so to speak, free of charge and from outside. Because what I produce could only be produced with the help of these external resources and, first and foremost, social cooperation, society could legitimately claim, as it sees it, rights over what I claim to have of my own. The social share in all that I own is what he calls, in French, “propriété sociale10” (social property). This social share would justify that the State, representing society, could put part of individual resources at the service of objectives that are not individual but social.

Luc Foisneau : Could you clarify the meaning and scope of this notion of social property?

Pierre Crétois : In my reading of Fouillée, I disagree, at least partially, with Robert Castel. In From Manual Workers to Wage Laborer11, Castel interprets social property as being a right to claim a loan that benefits the most underprivileged individuals and gives them a social base. Social property would thus be the property right of those who do not have any. He had a polemical aim when he wrote the book: he intended to oppose the Foucaultian school's conception of the welfare state as a mechanism for controlling precarious populations12. But, in doing so, he passed over in silence what, it seems to me, was at the heart of the theories of social property: a justification of the socialization of resources. My idea was rather to insist on the way in which the solidarists proposed arguments in favor of the socialization of resources through new forms of taxation and charges intended to finance the new social missions of the State. This is why Bourgeois, in the wake of Foucault, considers a tax system that would go beyond the simple financing of the regal powers of the State, whose importance in preserving property itself is clearly seen. Indeed, it is necessary to think of a tax system that could finance the new missions that the State has given itself in matters of social justice.

Luc Foisneau : Could Léon Bourgeois' theory justify ecological taxation?

Pierre Crétois : Insofar as I don’t owe what I have to my one and only job, I have a social debt: to repay this debt, Bourgeois thought that one solution would be to base taxation on income, a type of tax that he had defended the principle of when he was president of the council, in 1895-1896. All of my income does not belong to me, because I could not have obtained it without social cooperation. Thus, what I earn puts me in debt to society.

 

But your question refers less to social debt than to another kind of debt, which interested Fouillée but not Bourgeois. In order to produce what I produce, I depend on natural resources that I exploit, and thus also on the entire natural ecosystem. Fouillée relies on this observation to defend what he calls a right of the last occupant13. One does not have the right to appropriate everything, since the last occupant would thus be dispossessed of all natural resources.

 

This does not directly concern ecological taxation, which could not, at the time he wrote, belong to the concerns of Fouillée. But there is a link, that's for sure. Indeed, the preservation of natural resources depends on a certain number of balances between what is taken from nature and what nature is capable of producing. If we take more from nature than it can give, then there is obviously a kind of debt. Indeed, there is, beyond a debt to society as a whole, a form of debt to nature. This is something we talk a lot about today, the ecological debt, since we know that halfway through the year we have consumed more than the earth is capable of reproducing. This natural debt could be the basis on which a new form of ecological taxation could be founded and justified.

Luc Foisneau : The question I would like to ask you now is about the link between these late 19th-century theorists and contemporary issues of commonality. Was there a theoretical transmission, or are we in an absolutely different context? I am thinking in particular of the work of Pierre Dardot and Christian Laval on the critique of utilitarianism. Is there a continuity or not?

Pierre Crétois : I think there is no continuity between the authors we've just been talking about and the ones you're referring to, because the tradition to which Dardot and Laval14 refer is rather the anarchist tradition of Pierre-Joseph Proudhon. The French republican approach, to which I refer, is not their historical reference point. Nevertheless, the question of the commons, or the “common”, as they put it, is a question that is, in my opinion, central. There are two ways of approaching it: a legal or economic way, in the wake of the work of Elinor Ostrom, winner of the 2009 Nobel Memorial Prize in Economics, who speaks of “commons”. She defines a common as a shared resource, subject to the governance of a community that determines a system of rights that allows the members of the community to enjoy and exploit the resource in question. One can think, for example, of fisheries. This is an example to which she readily refers. Then there is the approach of the political philosophy of the common as developed by Pierre Dardot and Christian Laval in their book Common: On Revolution in the 21st Century15. They say something interesting about property, although paradoxical at first glance: according to them, it would be necessary to “institute what cannot be appropriated” (“instituer l’inappropriable16”). What they are thinking about is the fact that one can no longer think of the subject of law as being absolutely sovereign over things. There can only be rights of use, and these relative, partial rights of use, depending on what they call an “instituting praxis” (“praxis instituante”). Common activities produce legal norms that are binding on all those who participate in them. Faced with this, no one can claim absolute rights over things. An exclusive appropriation of material things no longer makes sense. This is why they speak of the “institution of what cannot be appropriated” (“institution de l’inappropriable”).

 

What I find interesting in these two perspectives—that is why I would like to bring them together — is the way they use concepts of legal realism, and the way they refer to the economics of regulation. Indeed, the economist John Commons introduced, at the end of 19th century, the idea that property is not a homogeneous whole, but a bundle of rights17. There would no longer be an absolute and sovereign right of the owner over his property, but rather a multiplicity of rights over things, which would make it possible to organize the social relations that are exercised over them. For example, there are the rights of the State, the right to expropriate, to levy taxes, urban planning constraints that prevent me from doing absolutely what I want with what I have, and there are the rights of third parties, the neighbourhood being able to exercise rights over what belongs to me, and, finally, there are what he calls residual rights, which are the rights that remain to me once the rights of the State and those of third parties have been satisfied. So we are no longer in a situation where the owner can do absolutely what he or she wants with what he or she has, but we are in a situation where the relationship of the owner to his or her property is such that he or she must make room for the rights of others. This seems to me to be a seminal intuition that comes to establish the idea that there is no possible privative appropriation in the sense of the proprietarian ideology that was brushed off at the very beginning of the interview, but rather a multiplicity of partial and relative rights that aim to make possible the coordination of social relations over things.

 

This leads us to the following thesis: rather than the thesis of proprietarian ideology in the way that Pothier, an 18th-century jurist from Orléans, was able to defend it, that is, the idea that “the proper and the common are contradictory”18, I prefer the thesis that the modalities of appropriation are modalities of the common, that is, modalities of social life.

 

 

Unfold notes and references
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1

Jeremy Rifkin, The Age of Access: The New Culture of Hypercapitalism, TarcherPerigee, 2001.

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2

C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke, Oxford University Press, 2011.

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3

John Locke, Second Treatise of Government, ed. by C. B. Macpherson, Hackett Publishing Company, 1980.

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4

Étienne Balibar, « Le renversement de l’individualisme possessif », in Hervé Guineret and Arnaud Milanese (dir.), La Propriété : le propre, l’appropriation, Paris, Ellipses, 2004.

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5

Jean-Jacques Rousseau, The social contract, Eng. transl. M. Cranston, Peguin Classic, 1968 ; Jean-Jacques Rousseau, Du contrat social, Livre I, chapitre 6, dans Œuvres complètes, tome III, éd. B. Gagnebin et M. Raymond, Paris, Gallimard, 1964, p. 361.

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6

Thomas Hobbes, On the citizen, II, XII, 7, ed. by R. Tuck and M. Silverthorne, Cambridge University Press, 1998.

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7

Léon Bourgeois, Solidarité (1896), Villeneuve d’Ascq, Presses universitaires du septentrion, 1998.

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8

Alfred Fouillée, La Propriété sociale et la démocratie, Paris, Alcan, 1904.

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9

Jean-Fabien Spitz, Le Moment républicain en France, Paris, Gallimard, 2005.

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10

Alfred Fouillée, La Propriété sociale et la démocratie, Paris, Alcan, 1904, p. 63.

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11

Robert Castel, From Manual Workers to Wage Laborers: Transformation of the Social Question, London, Routledge, 2017.

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12

François Ewald, L’État-Providence, Paris, Grasset & Fasquelle, 1986.

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13

Alfred Fouillée, La Propriété sociale et la démocratie, Paris, Alcan, 1904, p. 14 et sqq.

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14

Pierre Dardot and Christian Laval, Common: On the Revolution in the 21st Century, Bloomsbury Academic, 2019.

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15

Pierre Dardot and Christian Laval, Commun. Essai sur la révolution au XXIe siècle, Paris, La Découverte, 2014.

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16

Pierre Dardot and Christian Laval, Commun. Essai sur la révolution au XXIe siècle, Paris, La Découverte, 2014, p. 583.

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17

John Commons, The Distribution of Wealth, New York, Macmillan, 1893, p. 92.

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18

Robert-Joseph Pothier, Droit du domaine de propriété, dans Id., Œuvres complètes, vol. 10, Paris, Chanson, 1821, p. 10.