Fifty grades of shade: A story of enclosures, power and native title
Romance novels seduce you into feeling for their characters, drawing you into their exhilarating world where eventually, and predictably, the protagonists overcome their seemingly intractable obstacles and are united together.
The story of property and power, the fifty grades of shade, unfortunately never reaches such a resolution. This story is much more earthy. More real. It has all murky trade-offs that fiction novels can so easily ignore.
I tell two such stories. One fiction. One fact.
The Springfield Enclosures
In the famous Simpsons two-part episode, Who Shot Mr Burns, one critical plot element is as follows.
Mr. Burns then reveals to Smithers his grandest scheme: the construction of a giant, movable disk that will permanently block out the sun in Springfield, forcing the residents to continuously use the electricity from his power plant.
All the citizens affected due to Mr. Burns’ mad schemes, including Homer and even Smithers, swear revenge on him
It is a ridiculous abuse of power, causing Burns’s otherwise loyal assistant Smithers to finally stand up to his master, insisting he had gone too far, and losing his beloved job for doing so.
Here, Burns is taking a service provided freely by nature, light, and privatising access to it by eliminating access via his giant disk. He then controls access to artificial light through his nuclear power plant, though he could as easily sell the right to have the disk removed at a particular location.
The town is outraged at such blatant extortion.
Of course, such extortion can’t happen without the support of military force to protect the extortionist. Mr Burns is, after all, shot apparently in retaliation for his attempted shade extortion, and if we think a little further, the government of Springfield would have a hard time not enforcing the existing right to sunlight residents currently enjoyed. If Burns had bought off the police then he may have had a chance.
A cartoon plot device will always be incomplete. But we can let our imagination take over to get a picture of how a ‘post shade’ Springfield may have looked, and in particular, how quickly the shocking world of shade extortion would quickly become the new normal.
Imagine the Simpson’s grandchildren, raised in a post-shade world. To them this is the natural order. To get your sunlight you must pay Burns for the electricity to generate artificial light, or rent some time with the disk removed (or buy a window in the disk). Perhaps also you could buy light from another person who had bought, or been granted as a favour, a long term or perpetual right. Just like land, secondary markets in the various grades shade will evolve.
After many generations it is possible that very few people could even imagine a world without the social order arising from the privatised shade. They would ask questions like “How do you resolve disputes about sunlight?” and “Isn’t it more efficient to have a market in sunlight that a communist world of free access?”.
The morality of the situation, and the scope of alternative would be quickly lost to narrow debates about the fairness of trading circumstances within the inherently unfair, and unjust market for sunlight.
Native Title Enclosures
Now to fact.
While the fiction of the Simpsons can almost be laughed off, the history of Australia cannot. For that matter, neither can the history of most of the world.
The map below shows the territory of distinct Indigenous Australian societies – the indigenous nations if you will. We can imagine this map representing the existing system of property rights prior to colonisation, with each nation maintaining their internal social order, their access to resources, through intricate social systems, whether they look like religion, custom, or ritual.
Think of this map therefore as Springfield prior to Mr Burns’ scheme of privatising sunlight.
After the ‘great sunlight extortion’, or should I say colonisation, traditional social practices for sharing access and allocating indigenous resources were wiped away, as the military-backed Mr Burns’s of the British Empire took control of land, removing old rights and doling out new ones, and extracting rents for access to these new rights in the process.
We don’t even think about how outrageous private property is anymore. Just like the next generation of the post-enclosure world of the Simpsons who don’t see how extortive blocking the sun, we simply overlook this fact because we have a tendency to see the world as it is as the permanent ‘natural order’. The Simpson’s grandchildren would consider it normal, even arguing it is an admiral way to allocate a scarce resource.
Australian history is one of many examples of establishing property rights in the manner that Burns established is rationing scheme for sunlight. Australian indigenous societies had their once freely available land taken, fenced off, and were then charged to access to it under the threat of force.
Which brings me to Native Title. In 1990 Eddie Mabo won a High Court decision that overturned the doctrine of terra nullius, that the land of Australia was unoccupied and free for settlement prior to the arrival of the British. This lead to the implementation of Native Title legislation that allowed for a kind of right to land for Indigenous people subject to certain conditions.
One of the features of Native Title is that in trying to reflect the connection to land that existed in Indigenous culture and society, the bundle of rights that make up native title had to be quite different to what we regard as normal property rights in freehold.
While obviously the cultures across Australian Indigenous societies were very diverse, many had no concept of private individual property, only of tribal property. This applied not only to land, but to their tools and produced goods. There was no ‘my spear’. There were only spears of the tribe.
I know I’m not doing justice to the sheer diversity of Indigenous societies, but I hope to make the point that these societies functioned in the absence of the mystical normative thing we call private property. They functioned with other sets of rules and institutions that served the job of allocating resources amongst the tribe members.
Not only this, these cultural practices represented a relationship with the land that was more of a tribal obligation than a type of ownership in the modern sense. Thus, when the tribes were forced from ‘their’ land, it was akin to Mr Burns blocking out the sun – replacing a traditional system of rights and obligations with a new one through force.
Post Enclosure Logic
Given that all current property has potentially arisen from unjust historical circumstance, the practical question is how we best deal with the current situation to achieve desirable social goals.
To do this we must first realise that some kind of rationing system must exist in order to resolve conflict over access to resources. The trade off is whether the private property system we have is preferable in terms of promoting socially desirable endeavours such as investment and innovation, without coming at large social costs in terms of inequality and power imbalances.
So what is the next best alternative?
One radical way would be to get rid of private property altogether. But that is not as easy as it sounds. While it seems clear in the case of the shaded world of post-enclosure Springfield that simply removing the rights to sunlight would put the town back to where it was, that previous situation already had an implicit rationing system for sunlight through its rationing system on location – its land rights. Ownership of locations came with rights to sunlight at that location.
Like many problems surrounding resource distribution, the best and most obvious alternative ideas have been around for a long time. Back in 1879 Henry George promoted his logical solution to this conundrum – if private property rights are to exist, since they are in effect buying that right from the rest of society, they should be charged a fee by society at large. In modern parlance, taxes on property rights can be used to compensate those without property rights and promote socially desirable investments.
What needs to be understood is that in terms of our enclosure logic, implementing meaningfully large land taxes, or any significant change to property rights systems, is just another form of enclosure – it takes rights under one system and gives them to others under a new system. Thus, it faces all the social challenges of conflict between groups, in this case land owners and the rest of society, that were overcome by violent force in traditional colonial enclosures.
Thus the story of enclosures does not reach a resolution, but continues along its murky path of injustice and conflict. Though in reality we have avoided the bizarre Simpson’s world where enclosures would have created markets in 50 grades of shade, the real world is every bit as peculiar, with our market in land, in airspace, in underground minerals, and everything in between.