“That Sole and Despotic Dominion”: Marx, Property, Political Theology, Again

In previous weeks, we have examined briefly the Marxist notion of social-property relations and reviewed some tensions between Weberian and historical materialist approaches to the connection between property and violence: the capacity (or the propensity or sometimes the obscene desire) to harm, destroy, and dishonor inherent in Sir William Blackstone’s famous declaration: “There is nothing which so generally strikes the imagination… as the right of property; or that sole and despotic dominion which one man exercises over the external things of the world.”This week, I wish to begin to make a case for Marxist property theory as a kind of political theology.

In this preparatory work, I think that two activities should be prioritized. The first involves a turn to the Japanese Marxist Kojin Karatani; the second requires that we re-familiarize ourselves with the nuts and bolts of mainstream Anglo-American property thought.

Let’s take these up in sequence.

1) In Transcritique: On Kant and Marx (2003), Kojin Karatani foregrounds the theological origins of Marx’s thought. Karatani reminds us that It was Engels, not Marx, who first gleaned the contours of what would come to be called “historical materialism”: Marx was a “latecomer to the idea: he came to it because of his obsession with a seemingly outmoded problem (to Engels)––the critique of religion.” Marx, according to Karatani, never strayed entirely from his claim that “criticism of religion is the premise of all criticism.” For Karatani, Marx must be seen as, to the end of his life, engaged in the critique of state and capital as an “extension of the critique of religion.”

Marx’s capitalism was not merely a system of production: it was a “certain force that regulates humanity beyond its intentionality”––in other words, a “religio-generic entity”: “a force that divides and recombines human beings. “This,” Karatani writes, “is what Marx sought to decode for the whole of his life.”

It is in this light that we should read Capital‘s famous passage: “A commodity at first sight appears at first sight an extremely obvious, trivial thing. But its analysis brings out that it is a very strange thing, abounding in metaphysical subtleties and theological niceties.”

2) Consulting primary sources confirms that Marx had good reasons for apprehending capitalism as a “religio-generic entity.”

Consider the theological hues––the extraordinary intermingling of themes of sovereignty, the power over life and death, ancestry and inheritance with the rules and procedures of capitalist real estate––of the following passages from Alfred Topham’s law school textbook Real Property: An Introductory Explanation Of The Law Relating To Land, 2nd Edition (1915). Can it be denied that the conventional capitalist laws of property abound in metaphysical subtleties and theological niceties?

SECTION I: Ownership of Land

Land cannot be owned by individuals.

At the time of William I, all land was owned by the king, and in theory the same rule still applies.

The rule underlies the whole of the English law of land and accounts for many of its peculiarities, so that the modern law cannot be thoroughly understood without some knowledge of the history of this theory…

Heir. The heir is the person who takes the land of a tenant on his death if the tenant has not disposed of the land by his will. A person to whom land is given by will is not the heir, but is called a “devisee.” Hence the maxim “Solus deus heredem facere potest, non homo” (“God alone determines the heir; man cannot”). The heir is usually the eldest son of the tenant; but if there is no son, the daughters, father, brothers, sisters, or remote relations will succeed to the land according to rules which will be explained later.

He is not an heir until he becomes entitled to the land.

Hence the maxim, “nemo est heres viventis” (“a man cannot have an heir while he is alive”).

…Estate, means the interest which a tenant has in his land. Estates or interests may be of very many different kinds, thus–– An estate in fee simple, is an interest in land which, after the death of each tenant, can descend to his heir. It is, therefore, perpetual, and at the present day is practically absolute ownership.

Thus a tenant in fee simple is usually spoken of as the owner of the land, sometimes even in legal writings and Acts of Parliament. The term “owner” will frequently be used in this book; but the reader must remember that the word is being used as a shorter way of saying “tenant in fee simple.”

…Hence arose the expression real estate: a tenant of a freehold who was turned out (ejected) by his landlord or any other person could bring an action to recover the land itself, i.e. the “res” or “thing” of which he had been deprived; the action was called a re-al action, and the property which could be recovered was real property.

Ownership consists chiefly of three rights (1) to enjoy, (2) to destroy, (3) to alienate the whole of the thing owned.

(1) The tenant in fee simple has always had full power to enjoy the whole of the land as he likes during his life. This right extends not only to the surface, hut also to all things above and below. “Cujus est solum ejus est usque ad coelum et usque ad inferos.”

(2) He never had and never can have power to destroy it, from the nature of land itself.

(3) He has now the right to alienate; but this right was only gradually acquired.

…When a tenant in fee simple granted his land to a corporation, the lord lost his services; for, since a corporation never dies, there could be no escheat and no reliefs. Hence it was called a conveyance into Mortmain (= dead hand) and was forbidden. Lands conveyed to mortmain are forfeited to the Crown…

If modern capitalism is, as Martin Sklar argued in The Corporate Reconstruction of American Capitalism (1988), “a realm of contracts and property rights, that is, a realm of law (emphasis added)” then we ought to find these passages from Topham’s Real Property of great interest. If, to continue quoting Sklar, “to understand property, to understand market relations, to understand politics in a capitalist republic such as the United States, it is not sufficient, but it is certainly necessary to understand law––more precisely, the interrelations of property, class, the market, and the law,” then we might regard the political-theological resonances of Topham’s Real Property as something more than a quirk or holdover of English feudal history. And given the intimacy of both English and American law and capitalism, these weird resonances of capitalism and religion––property, sovereignty and violence––must surely be relevant to our work as students of US capitalism.

If––to draw upon Sklar one final time––”Coke and Blackstone were as historically integral to the flowering of capitalist society as coke and coal were to the flourishing of the iron and steel industry and of steam-power technology,” if  “(l)awyers and property owners, not pamphleteers and “ideologues” (like Tom Paine), dominated or ultimately determined the founding politics of the new American nation, as they have dominated the practice of the nation’s politics throughout its history,” then it seems a good bet that further meditation upon inter-embeddedness of social-property relations and political theology can only help in the ongoing and evolving quest to grasp the consequences of the advent of a political order premised upon “that sole and despotic dominion which one man exercises over the external things of the world.”