PREPARATION:

• Read de Soto, Chapter Six

NOTES:

[Property is a social relation, not a physical or even legal thing.  It's about how we organize our relationship with each other.]  In this chapter de Soto confronts the problem of creating useful forms of property rights in the Third World:  first, how they can be discovered or formed, and second, how they can be put into practice.

The distinction between "property rights" (i.e., rooted in their protection, even if they are thereby "dead capital") and the opportunity to use property -- "metarights" (i.e., oriented toward making them useful, making them "live capital").

Societies may need legal change, but the battle for the change is a political, not a legal one.

Note the role of the left [159].  Some leftists are o.k. with the market system & capitalism.  [Throughout the chapter, note the connection with "Lula" (Brazil's President as of 2004) and the PT (a.k.a. PTB:  the Brazilian Worker's Party).]

I.  The Legal Challenge [of creating a useful legal framework for a good property system]

• For the poor to change to a new legal system, the transition must be easy, profitable, and culturally/politically appropriate.  [Trevor Porter pressed me on this, asking if these criteria apply to the people inside the bell jar as well -- and if so, how do they apply to them.  He's right:  we do need to look at these criteria for the people inside the bell jar.  How do the criteria apply to them when we consider changing the legal system to make property ownership easier?  Well, such a change would be easy for those in the bell jar, since owning property wasn't a problem before and it would continue to be easy;  in fact, they might find they could dispense with a lot of lawyer's fees (and bribes).  The change would be profitable for them -- or at any rate, this is what de Soto takes great pains to argue.  Finally, it would be culturally/politically appropriate in that those in the bell jar wouldn't really be affected by the shifts that were made to take the poor into the property system.]
• The ground-up approach:  "discovering the law" [179];  "listen to the barking dogs";  "vox populi, vox dei" ["The voice of the people is the voice of God"];  "Das Gesetz muss aus dem Gedanken des Volks gesprochensein" ["The law must come out of the people's thinking"] [172-3].
• This means it's a political approach, not a legal one.  (He picks up this theme again later.)
• Two earlier but failed approaches to protecting the property of the poor:
• ("rightist") mandatory law:  still bars the poor;  unsuited to their forms of documentation and understanding of their property;  property not just a matter of drawing boundaries but a matter of drawing use boundaries and recording appropriately.
• ("leftist") collectivization:  provides the poor "property" but kills it as capital.
• [I believe de Soto's analysis is a bit naive here;  land reform programs, like in the Philippines, have been blocked by the elites.  Land reform is not even mentioned in the book (as far as I'm aware;  certainly it isn't in the index).]

• (a) Get a leader who (b) takes the perspective of the poor.  S/he can thus articulate the purpose of the changes most clearly and can keep from being confused and coopted during the political battle.
• "Coopt the elite" by showing them how they can profit too from the change:
• greater social stability
• less lawbreaking & better (more efficient and more just) policing
• less corruption
• less drugs
• Deal with the bureaucracies & functionaries who maintain the current system:
• marshal reform-minded lawyers -- like my former student Brenda Denton
• don't focus (at least at first) on technological fixes