(Non-)Local Property Rights, Expropriation, And Various Sequelae

A bazillion years ago I got into a discussion with some of the folks at Crooked Timber about the scope of property rights and how said scope affects claims of expropriation. It's a fundamental, and interesting, issue: What rules hold between different societies, especially at time of first contact? When two moral systems come into conflict, which system should be the benchmark for evaluating behavior?

John Quiggin had a bunch of interesting things to say in the comments. One comment in particular has stuck in my head all this time:

GG @11, and others I think expropriation is the right term here. People had property rights under 0ne system (in this case, that of indigenous societies) and these property rights were taken away (expropriated) when that system was forcibly displaced by a new one (the US state).

As argued in the OP in relation to property in general, expropriation isn’t just or unjust in itself, it depends on the justice of the social change that makes it possible. As you say here, the transgression against indigensou [sic] people arise from their loss of autonomy, not to mention capacity to feed themselves. The fact that some indigenous people lost property rights was part of this process, but not the essential injustice

It's certainly seems like a good response on first blush, but on reflection I think it has some problems which bear further consideration.

John says that the deciding factor in evaluating whether an expropriation is "just" or "unjust" is the "justice of the social change that makes it possible". So far, so good. But then the question which immediately arises is what framework should be used to evaluate the "justice of the social change"?

He makes use of a contemporary, progressive framework, as exhibited by his concern over concepts like autonomy and quality of life impacts. However, given the passage of time between the present and the acts in question, its reasonable to consider whether such application is an exercise in presentism. John doesn't appear to have written much of anything on the concept; the only item I could dig up is a comment on an unrelated thread:

And my problem is that I don’t accept that presentism is a (generally) useful concept in understanding modern history. To be sure, there are issues like equal marriage where modern views are very different from those of even the recent past. But on the issues discussed in the OP, and on most major issues of public policy debate today, the arguments of the 19th and 20th century are still going on: we have more evidence, and there have been changes in the balance of opinion, but the issues are essentially the same.

Historic and contemporary understandings of expropriation, and the morality thereof, are not "essentially the same", so there's an argument to be made that John is guilty of presentism by his own metric.

If we decide that, due to the passage of time, a historic framework is more appropriate, we're still left with the task of identifying which historic framework is most appropriate. My intuition is that there are a number of reasons (past and present power imbalances, rectification of current inequity, etc.) to choose to evaluate the justice of these actions from the perspective of the indigenous peoples so affected. This approach has some challenges; there were a variety of moral systems endorsed by the indigenous peoples of the Americas, which greatly restricts our ability to make broad statements about the (in)justice of various acts. Rather, it seems that we have to evaluate instances of expropriation on a case-by-case basis.

Also, if you take this approach, things get real weird real quick. The archeologic record regarding pre-contact, inter-tribal warfare is pretty gruesome. Some tribes were totally OK with expansion by conquest, and there's ample evidence of settlements being basically annihilated by hostile tribes. Viewed through this lens a lot of post-contact history looks like business as usual, with all the complications for notions of "justice" that entails. Indigenous groups would certainly have objected to expropriation of their land, but not all of them could have done so on a principled basis.

One highly-probably response to the above is essentially "the devil can quote Scripture for his purposes". There's a grain of truth to that; sometimes I just want to watch the world burn. But trollish purpose doesn't, by itself, invalidate the argument.

Really, what the above highlights is a fundamental tension between rendering moral judgements about distant times and places while maintaining certain progressive commitments in the present. Put more generically, suppose:

• Our present-day moral intuition is that some practice X is categorically repugnant.
• X is/was practiced by marginalized group Y.

The first bullet effectively commits us to moral universalism, at least in the context of practice X. Implicit in this belief, however, is the judgement that margnizalized group Y's behavior is/was immoral in an absolute sense. However, there is a strong argument to be made that such judgements, coming from white, Western, progressive types, are really just a form of moral colonialism.

My experience is that the above contradiction leads to a lot of waffling and equivocation in practice (which drives me up the wall, in case you couldn't figure it out): "X is always wrong?" "Yes." "So you believe that there are universally applicable moral norms?" "Not, but..."

sigh

Also, while I'm at it, I should note that a lot of the people participating in the discussion at Crooked Timber made a big deal of the difference between "property" and "possession", the former being a legal construct and the latter not. In the context at hand that seems to me to be a distinction without a difference. Legally, property is a bundle of rights i.e. the right to use, to enjoy, to exclude, and so on. However, for "posession" to be more than notional it must surely include at least the rights to use, enjoy, and exclude; what's left over (the rights to sell, lease, encumber, and will) don't seem to have much bearing on discussions of expropriation.