" Private property is a social construct"

I was arguing with someone recently about the standard kind of topics that libertarians argue with people about; the role of the state, the justice of taxation, stuff like that. Anyway, one of the counter-arguments the made was one which seems to crop up everywhere and which is the title of this post: "Private property is a social construct" (call this claim 'P').

Now, there are quite a few different senses in which P can be taken. One, which even libertarians can agree with, is the descriptive (i.e. non-normative) claim that the institution of private property relies essentially for its existence on a certain level of popular support, and that, if 'society' (i.e. a critical mass of people) did not believe in its legitimacy, private property rights would no longer be enforced. And without quibbling over details, this claim seems pretty plausibly true. But, because it is not a normative claim, this interpretation of P does not get opponents of stringent private property rights where they need to go. One can certainly believe, as I do, that property rights are both dependent on a certain level of goodwill among the population and yet that they are also morally justified.

But of course, when people use P in arguing against private property, they don't mean it in the sense above. Rather, their intended interpretation is indeed a normative one, and goes something like this: "The institution of private property is a wholly artificial one, the construction of society, and it therefore reflects no pre-political or pre-social moral truths. In evaluating private property from an ethical point of view, the sole relevant considerations to take into account are the prevailing social attitudes; and if (as is the case) the prevailing social attitudes regard government taxation of earnings as justified, well, then there are no legitimate grounds for complaint about taxation of earnings." I hope any readers will agree that this is a sentiment which they have actually encountered, and that I am not attacking a straw-man.

But this argument is a remarkably silly one, and, indeed, one that I don't even think most of the people who employ it really believe. Let's take a concrete example to see why: segregation in the Southern United States. In some periods, the owner of homes in certain areas were forbidden, by law, to let their houses to black people because of racist zoning policies. Now, suppose further, as I believe is a matter of historical fact (although I am not a historian and this is probably debatable), that such policies had widespread and popular support and reflected prevailing social attitudes. People who use P to argue against private property ought to be committed to endorsing zoning laws which enforced segregating housing; a conclusion I seriously doubt they would swallow.

The point is really that when opponent of property say "private property is a social construct," they do so in a very misleading way. They don't really mean that it is wrong or meaningless to attempt to evaluate different property regimes independently of their social context, because, on pain of accepting the legitimacy of segregated housing (something that, to their credit, opponents of property do not frequently do), they happily engage in such evaluations themselves. What they usually do mean is that they disagree with the particular pre-political standards of morality that proponents of private property endorse and would rather use their own; and this is a perfectly coherent position to take (although of course I disagree with it), just one that is not compatible with blunt assertions that private property is simply a social construct.