Anti-Maskers and the Tragedy of Private Property
A “Right to Shop”?
You’ve probably seen lots of them by now. Videos of people having public meltdowns in private businesses, because they’ve been told to leave the business for not wearing a mask during a time of global pandemic. Sometimes they overturn something on their way out. Sometimes they assault a worker. Sometimes they are arrested. Oftentimes, they yell something about their rights being violated … about their right to shop or their “right to commerce”.
For me, the experience of watching these videos is an exquisite joy. To begin with, I love seeing some of these anti-maskers getting a little of their just desserts. I also love the irony. No doubt, most of these people are politically conservative. And I imagine that many of them are the types who at one time supported the right of business owners to refuse service to LGBT folk or criticized the racial integration of public facilities as federal overeach. They’re now on the receiving end of some of their own arguments.
They’re also experiencing the harsh reality of the institution of private property.
It will come as no surprise to many people of color and many LGBT people that, in the United States, there is no legally recognized “right to commerce” or “right to shop”. Businesses which are “open to the public” are nevertheless private property, and as such they may exclude anyone for any reason other than certain protected categories—and even that restriction can be circumvented by manufacturing superficial reasons.
That many people believe that they have a right to shop is revealing. For one thing, it highlights how, in the public consciousness, commerce has trumped practically every actual civil right. For another, it exposes the privilege of a lot of people—middle-class, hetero-/cis-, White people—who have never before had to worry about being excluded from a business before.
In the U.S., such people have enjoyed an ability to move around in public and open-to-the-public spaces, while many others have not. I am one of those multiply-privileged people. For most of my life, I felt free—entitled actually—to go just about anywhere, except someone’s residence and or their yard. And even then, I didn’t have to worry about getting shot just because I was on someone else’s property.
A Fence in the Wilderness
One summer, though, something clicked in my brain while we were visiting relatives in the Rocky Mountains. My wife’s family lives in a very rural part of central Utah, almost an hour away from any interstate. Their house abuts a mountain range, and they like to fish and camp at a place they call “Community Lake”. (It actually has another name, but it’s telling that, for them, it’s always been “Community Lake”.) The lake, actually a pond stocked with fish, is about half way up the mountain. When we visit, I like to go off by myself sometimes and feel the remoteness of the place. On a few occasions, when there wasn’t too much snow, I have driven to the top of the mountain.
On one of the first of these solitary treks, I encountered something that changed forever how I see the world. I was hiking, probably an hour away from the community pond, which was half the way up a mountain, which itself was an hour away from any moderately populated area, in a state that is already pretty sparsely populated. (Utah is 41st in population density, similar to Nevada and Nebraska.)
And then I saw a fence.
Here I thought I was “away from the things of man”. And what do I encounter, but one of the quintessential markings of civilization … the fence.
I was stunned at the realization that anyone would feel the need, much less the right, to fence off a part of the world that, to me, looked like wilderness. (I later learned that there are ranchers in area who keep cattle and sheep, and the fence was probably one of theirs.) But something had changed in how I saw the world. I started noticing other fences in unlikely places. Places I thought were wild. Places I thought were government-owned forests. And then, like dominoes in my brain, the wide-open space, which had formerly been my world, started to become … enclosed. I started to see how much of our world is private property, or rather, how little of it isn’t.
No Place to Protest
Even after this experience, I didn’t immediately feel too hemmed in. After all, I am a multiply-privileged person. I’m White and usually bourgeois-looking, so I don’t experience private thresholds the same way many poor people and people of color might. A suit, a credit card, or a confident look or tone would open most doors for me. I could still feel like a “master of the universe”, in spite of all those fences.
All that started to change when I started getting involved in street protesting. Try organizing a peaceful demonstration of soccer moms and retirees, and suddenly you’ll discover you are hemmed in by a host of restrictions you were not previously aware of. To begin with, sidewalks—that most quintessentially public of urban and suburban spaces—are disappearing due to car culture. And a lot of the remaining sidewalks are actually on private property, owned by businesses, to provide ingress and egress from your car. The same is true of all those green spaces on the side of the road; they’re private property too.
And forget about walking in the street. No, it’s not because it’s unsafe. It’s because you’re impeding the flow of commerce—something that’s being labelled as terrorism in some places now. (Yet another one of these bills is pending in my home state of Indiana, as well as in other states.)
Then there’s the permits. Thought you had a right to assemble? “Not without a permit,” the city will tell you. And to get a permit, you have to let the authorities dictate to you the where, when, and how of your demonstration. Unless you have overwhelming numbers of people to back you up in the street, you’re at the mercy of the rule of the bureaucrat, the whim of the cop, and the ego of the rent-a-cop (not to mention the histrionics of the Ken and the Karen).
Protesting opened my eyes. The world is not the wide open space I thought it was. It is hemmed in by fences which demarcate the boundaries of private ownership. These fences are mostly invisible now, in order to encourage the free flow of commerce. But if you’re not shopping or serving those who are shopping, then the bubble of your personal autonomy can be suffocatingly small.
Our everyday world has been divided up like the American continents during the Age of “Discovery” or like Africa and Asia during the second wave of imperialism of the late 19th and early 20th centuries. The similarity is not accidental. Of course, none of this is news to those who were colonized. To indigenous peoples. To people living in colonized nations. Not to mention to the sentient other-than-human species. What protesting helped me realized, though, is that, to a lesser extent, we’re all colonized. We’ve been colonized by capitalism—both physically and mentally.
Enclosing the Commons
It would probably come as a shock to a lot of people nowadays that private property¹ is not a universal institution in human cultures. In most non-industrial societies, people understood land to be part of a “commons”. The general rule of the commons—whether it was a field, a body of water, a forest, or the like—was that people could take what they needed, but not more, they should not damage the commons, and they could not exclude others from it.
Talk to a communist about private property and they will most likely tell you about the British Enclosure Acts of the 17th to 19th centuries, by which the British commons was “enclosed”—basically taken by rich elites.² But private property is actually as old as empire.³ In early Rome, for example, male heads of households exercised complete dominion over both their land and the people on it, in much the same way that later Roman emperors exercised dominion over the empire. Custom still recognized common property⁴ existing alongside the private property of the pater familias. But over time, these patriarchs annexed more and more of what had previously been common property of the people, in a very early example of what would become known as “enclosure”.
The British enclosure of the commons was special, though, because of its scope and because of the relative importance of Britain in the history of industrial capitalism. In terms of its scope, millions of acres were enclosed and hundreds of thousands of peasants were displaced. In terms of historical relevance, the British enclosure made possible the Industrial Revolution and the growth of capitalism.
It’s no exaggeration to say that the Industrial Revolution and the spread of capitalism would have been impossible without the loss of the commons. The enclosure increased the concentration of wealth in the hands of the elites, facilitated the more efficient exploitation of the land by new farming methods, and created a class of displaced people, cut off from the land that sustained them. No longer able to feed themselves, the commoners were compelled to move into crowded, polluted cities, where they were could be more easily exploited by rich capitalists.⁵ As economic historian, Dirk Philipsen, explains in his essay, “Economics for the People”:
“no single event, short of war, created as much misery in a country like England as when those with access to violence (arms, laws, wealth) privatised and fenced in the land that people needed to stay alive. It came to be known as ‘enclosure of the commons’ but represented a largescale and bloody theft, allowing a tiny percentage of people to exclude the majority from access to a common heritage. The result has since been naturalised and replicated the world over and sanctified in law …”
— Dirk Philipsen, “Economics for the People” (2020)
The world we are living in today is a product of the enclosure. The enclosure transformed not just our conception of property, but our entire way of relating to the world and to each other, as Fritjof Capra and Ugo Mattei explain in The Ecology of Law:
“The enclosure of the commons not only divided the land but also separated humans from the kósmos and divided whole communities … People who had once been members of a community now found themselves largely alone in an unfriendly urban environment. This major shift replaced a lifestyle … in which peasants were a component part of their ecological community with a lifestyle of labor in exchange for a [wage]. …
“The transformation of peasants into industrial workers involved much more than just forcing a traditionally exploited class into a trade. The peasant life, supported by guaranteed common resources and the simple collective institutions of the commons, was hard, but not alienating …
“Despite a variety of vexations that affected the conditions of peasants under the medieval feudal system, commoners in a village economy enjoyed a unity of life and labor, and life was not repetitive. The average person’s existence … was quality-based and relational in its nature; it was not a quantified unit of time to be sold on the market. …”
— Fritjof Capra and Ugo Mattei, The Ecology of Law (2015)
What the enclosure did to the land, it did to us as well. Like a property recorder’s plat map, which divides the earth into distinct private lots, society was transformed from a network of interconnected relationships into a Newtonian model of atomistic individuals interacting in only the most elementary ways.
The (Myth of the) Tragedy of the Commons
Given how radically the enclosure transformed our world, it is really remarkable that I had never heard of the enclosure of the commons during my school years, not in public school and not at university. Though I attended a very conservative college, I don’t think I’m alone in this. History was written by the victors, i.e., the capitalists. Over just a few centuries, what had been the norm for millennia—land as commons—became the exception, and what Capra and Mattei call a “brutal class plunder” and Susan Jane Buck Cox calls a “sophisticated land-grab” was reworked into a story about the inevitable march of progress.
In fact, the only context in which I had ever heard the term “commons” while in school was as part of the phrase “the tragedy of the commons”. This concept, which has taken on mythical status in our culture, is used to bolster the idea that private property arrangements are superior to common property systems. According to this myth, unlike private property, common property is bound to be spoiled or overconsumed by individuals acting in their rational self-interest.
The phrase “tragedy of the commons” was coined by Garrett Hardin in his 1968 article by the same name. Since its publication, it has become one of the most-reprinted articles ever published in any science journal. It has taken on the attributes of a sacred text in social science and economic circles, and the phrase “tragedy of the commons” is now used as a kind of shorthand for what is supposedly a self-evident truth. This is disturbing given that Hardin offered no proof for his fable and has since been proven wrong.⁶
Hardin famously described a pasture held in common by herders which is inevitably overgrazed, because—according to the theory—it is in each individual herder’s interest to consume as much of the field as possible. This argument against common property is actually as old as the Enclosure Acts, when it was used by propagandists to justify the theft of the commons by elites. The meme serves the same function today, as the few remaining commons—natural ones like fresh water and social ones like the Internet—are increasingly privatized or enclosed.
In reality, as Susan Jane Buck Cox showed in her 1985 paper published in Environmental Ethics, overuse of the commons in medieval and early-modern England was relatively rare. It is likewise rare in modern cases of managed commons, as economist Elinor Ostrom (Governing the Commons) has demonstrated. (Ostrom won the Nobel Prize for her field studies on how people in small, local communities manage shared natural resources.⁷) In contrast, it is actually the modern system of private property which is wasteful and destructive. The supposed efficiencies and productivity of the private property system are only made possible through hidden subsidies from the commons (i.e., free or cheap access to natural resources) and the hidden displacement of costs onto the commons (i.e., pollution without consequence).
English commoners were prevented from overgrazing the commons by what bioethicist Van Rensselaer Potter called “a kind of ‘bioethics’ enforced by the moral pressure of their neighbors.” According to Potter (who coined the term “bioethics”), the real tragedy of the commons had nothing to do with any inherent flaw in the concept of common property, but everything to do with “the disastrous transition period between the loss of an effective bioethics and its replacement by a new bioethics that could once again bring biological realities and human values into a viable balance.” (We are still living in that disastrous transition period!)
Radical environmentalist, Derrick Jensen, explains it more colloquially:
“[Hardin] basically says that the tragedy of the commons is that if you have a common area, that it will eventually be destroyed. He says this is because if you have a community area where the village is allowed to, say, run a hundred sheep, ten families and every family can run ten sheep. Then what‘s going to happen is that one family is going to run eleven sheep, and then another is gonna run eleven sheep, and then eventually the commons will be destroyed. But this is complete bullshit. What that is, is a tragedy of the failure of community.
“If you have a community, and everybody knows that they can run ten sheep, if somebody runs eleven sheep, the other members of the community come to them and say: Dude, that is not a good idea. And if the person does it again, they’d say: Dude, that‘s a really bad idea. And if they did it again, they‘d burn down their house. So, what he is describing is a situation in which your community has already been destroyed.“
— Derrick Jensen, “How Do We Stop Capitalism?“, transcript of talk at the 2014 Earth at Risk “Capitalism and Sociopathy” panel
Put another way, Hardin’s hypothetical presupposes the very thing it is supposed to prove. It assumes a world that has already been transformed by the enclosure, a world of hyper-individualists competing to the death over resources which had previously been managed in community. It also assumes private ownership of the cattle. As Ian Angus explains: “Hardin didn’t describe the behaviour of herdsmen in pre-capitalist farming communities — he described the behaviour of capitalists operating in a capitalist economy. The universal human nature that he claimed would always destroy common resources is actually the profit-driven ‘grow or die’ behaviour of corporations.”
Hardin later qualified his thesis, stating that it was in the “unmanaged commons” that the tragedy lies. But this begs the question: When was the commons ever unmanaged?⁸ Hardin believed that the only ways that the commons could be managed was through the market or through state socialism. His inability to appreciate the effectiveness (or even the existence) of non-state communal management is a testament to the impact of the enclosure on how we think about the world.
A Memory of the Commons?
The enclosure was not only a physical event. It was a mental one too. The centuries-long enclosure of the commons overlapped the “Enlightenment”, during which the alienating philosophies of Bacon, Locke and others effectively undermined our ability to speak—or even think—about what had been lost. Our experience of the land as something unitary and accessible to all was replaced with a vision of a fragmented world divided by fences, both visible and invisible.
What’s more, our conception of ourselves was transformed. Once intimately connected to the land and to each other, we became atomized and set adrift, individuals existing primarily in competition with one another for scarce resources. Having lost the land, we then lost our memory of it—though the presence of its absence continued to be felt, if not named.
Which brings me back to the anti-maskers pitching fits at grocery stores. They are experiencing, first hand, what Dirk Philipsen, calls the “tragedy of the private”. The enclosure is finally becoming visceral for them. So much of what anti-maskers do and say is wrong. But I feel a tinge of sympathy for them, because I think that underlying some of that entitled outrage is a vestigial the memory of the commons.
Of course, the anti-maskers are not champions of the commons. Far from it. For one thing, the language they use is the language of individual rights, the language of “mine, not yours”, the language of alienation, from other people and from the land. Everything about their actions speaks to their hyper-individualism, from their refusal to wear masks to protect others to their abuse of workers to their hoarding of toilet paper, hand sanitizer, and other goods. In addition, by not wearing masks, they are effectively spoiling the “commons” for others. And following the custom of the commons, they should be excluded because of it.
But still, their mistaken belief that people have a legal right to shop at Trader Joe’s might derive from an intuition that there should be some places in the world that are part of a commons. Not just private property open to the public for transacting business, but truly common spaces. Spaces where people in need can get food, for example, and other things they need to survive. That place used to be the land. Now, tragically, it’s grocery stores. And the notion that capitalists can exclude some people from getting what they need to eat or what they need to survive seems to run afoul of some intuition or some repressed memory of a time when at least some land was commons.
Philipsen, like many others recently, has suggested that “a basic truth is once again trying to break through the agony of worldwide pandemic”. We see it in the rising death toll and the rapid spread of the virus in hyper-individualistic societies like the U.S. We see it in the origins of the virus itself, likely caused by the loss of wild habitat. We see it in the exploitation of healthcare workers, teachers, supermarket workers, delivery drivers, and other types of essential workers by government and business. We feel it in the psychological impacts of social isolation and the lack of in-the-flesh contact with other people. We see it in mutual aid networks springing up, sewing circles making masks, and people singing from balconies. And, in an ironic way, we even see it in the anti-maskers raging in the aisles and checkout lines of grocery stores around the country.
The “basic truth” we are remembering once again is that we are both far more interconnected with one another and far more dependent on the land than we had been taught to believe. And also far more connected and far more dependent than our legal and political institutions are capable of recognizing. And if we are going to survive, we are going to need new (or very old) institutions, as well as a new (or very old) vision of ourselves and our relationship to each other and the earth. In recent years, more and more thought leaders are turning to the idea of the commons as an alternative.
Notes
¹ By “property” here, I mean “real property”—land—not “personal property”—chattels, goods, things, stuff. This distinction is important. I think a lot of the American communo-phobia arises from a unspoken fear that communism would mean someone could come into your house and take your TV, your lawnmower, or your Kurig if they wanted to. So it’s important to clarify that, when we talk about “private property” here, we’re mostly talking about land, and land-like things, like buildings.
² Even before the Enclosure Acts, the British commons had been slowly reduced to what Hoskins and Stamp, in their 1965 book, The Common Lands of England and Wales, called "a residue of rights", rights to something which had previously been much more extensive.
³ It's important to remember, though, that for most of history, kingdoms and empires have been the exception, rather than the rule, in human societies. This is often glossed over because historians have relied overmuch on the written records left by empires. Even after the appearance of the first city-states, the vast majority of people continued to live outside of their reach for millennia. Up until the 17th century, one-third of the globe was still beyond the reach of empire. (See James Scott, Against the Grain: A Deep History of the Earliest States, 2017).
⁴ “Common property” should be understood as a later stage in the evolution of the commons into private property. The commons was probably not understood as property (in the sense of a possession) at first and only later became such in contrast to private property. The linguistic challenges of speaking about the commons without using terminology which implies possession or ownership is a testament to the impact of the enclosure on our minds. Johannes Euler and Leslie Gauditz write of “commoning” as a set of relations between people and between people and the land.
⁵ Thomas More movingly described this process, already underway in the 16th century:
“… the nobility and gentry, and even those holy men, the abbots! not contented with the old rents which their farms yielded, nor thinking it enough that they, living at their ease, do no good to the public, resolve to do it hurt instead of good. They stop the course of agriculture, destroying houses and towns, reserving only the churches, and enclose grounds that they may lodge their sheep in them. … those worthy countrymen turn the best inhabited places into solitudes; for when an insatiable wretch, who is a plague to his country, resolves to enclose many thousand acres of ground, the owners, as well as tenants, are turned out of their possessions by trick or by main force, or, being wearied out by ill usage, they are forced to sell them; by which means those miserable people, both men and women, married and unmarried, old and young, with their poor but numerous families (since country business requires many hands), are all forced to change their seats, not knowing whither to go; and they must sell, almost for nothing, their household stuff, which could not bring them much money, even though they might stay for a buyer. When that little money is at an end (for it will be soon spent), what is left for them to do but either to steal, and so to be hanged (God knows how justly!), or to go about and beg? and if they do this they are put in prison as idle vagabonds, while they would willingly work but can find none that will hire them; for there is no more occasion for country labor, to which they have been bred, when there is no arable ground left.”
— Thomas More, Utopia (1516)
⁶ It’s even more disturbing given that Hardin was a White nationalist, eco-fascist, and eugenicist, and his case for the “tragedy of the commons” was made to support policies of anti-immigration, restricting the reproduction of non-Whites, and ending the welfare state.
⁷ Lee Ann Fennell coined the term “Ostrom’s Law”, in Ostrom’s honor, to refer to the idea that “a resource arrangement that works in practice can work in theory.”
⁸ It’s only under a private property regime such as we have now that the remaining commons, like the atmosphere, are left largely unmanaged. Under such a regime, there is only property which someone owns and property which no one owns. There is no category for property which everyone “owns”. It’s interesting to note that Hardin was actually trying to make a case for government regulation of certain areas of the economy (like polluting industries) and against unchecked economic growth, so there is a certain irony in his arguments being so fervently embraced by neoliberal economists.
JOHN HALSTEAD
John Halstead is the author of Another End of the World is Possible, in which he explores what it would really mean for our relationship with the natural world if we were to admit that we are doomed. John is a native of the southern Laurentian bioregion and lives in Northwest Indiana, near Chicago. He is a co-founder of 350 Indiana-Calumet, which worked to organize resistance to the fossil fuel industry in the Region. John was the principal facilitator of “A Pagan Community Statement on the Environment.” He strives to live up to the challenge posed by the Statement through his writing and activism. John has written for numerous online platforms, including Patheos, Huffington Post, PrayWithYourFeet.org, and Gods & Radicals. He is Editor-at-Large of NaturalisticPaganism.com. John also edited the anthology, Godless Paganism: Voices of Non-Theistic Pagans and authored Neo-Paganism: Historical Inspiration & Contemporary Creativity. He is also a Shaper of the Earthseed community, more about which can be found at GodisChange.org.