Property Rights (Routledge Revivals)

Philosophic Foundations

Lawrence C. Becker

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317703297
• Edition: 1
• Topic: Philosophy
• Subtopic: Free Will & Determinism in Philosophy

Property Rights: Philosophic Foundations, first published in 1977, comprehensively examines the general justifications for systems of private property rights, and discusses with great clarity the major arguments as to the rights and responsibilities of property ownership. In particular, the arguments that hold that there are natural rights derived from first occupancy, labour, utility, liberty and virtue are considered, as are the standard anti-property arguments based on disutility, virtue and inequality, and the belief that justice in distribution must take precedence over private ownership.

Lawrence Becker goes on to contend that there are four sound lines of argument for private property that, together with what is sound in the anti-property arguments, must be co-ordinated to form the foundations of a new theory. He therefore expounds a concise but sophisticated theory of property that is relevant to the modern world, and concludes by indicating some of the implications of his theory.

1 Introduction

DOI: 10.4324/9781315780702-1

People want their social institutions to be procedurally efficient and fair, to enable the realization of worthy collective and personal goals, to produce results which are just, and to leave them free to pursue whatever activities they themselves choose. Most political philosophy is (among other things) an attempt to work out how deeply inconsistent these wants are, and to decide what can be done about it. This book is no exception.

People who want property want to be left alone to acquire and enjoy it. They want to be able to do what they please with it – to consume it, transform it, exchange it, give it away, put it to good use, or just hold it. How much property people want, what sorts they want, and how much they are willing to let these desires be frustrated in order to achieve other goals varies widely. But a social order must coordinate varying desires if it is to be stable, and the price of stability must be morally justifiable if the social order itself is to be justifiable. The more crowded the planet grows, and the scarcer its resources become, the more difficult this is.

Thoroughgoing libertarians are willing to tolerate nearly any resultant distribution of goods in order to preserve the liberties of a social order based on private ownership. Socialists are willing to restrict or eliminate almost any form of private ownership in order to achieve justice in distribution. But it has become increasingly evident over the last century that advocates of a compromise between libertarian and socialist extremes lack a principled consensus about what they will or will not tolerate. My object here is to make a contribution toward such a principled consensus.

In particular, I shall argue against anti-property theorists that private property rights, while not natural rights in any meaningful sense, are none the less justifiable by several independent lines of argument. Indeed, I shall urge that within certain significant constraints, people ought to be free to acquire and keep whatever and as much as they want. Against libertarians, however, I shall argue that there are significant constraints on legitimate acquisition and ownership rights, that these constraints become increasingly stringent as scarcity increases, and that we now need redefinitions of the sorts of private ownership rights we allow. Finally, against the zeal of some reformers and some legal theorists who discuss the law of ‘takings,’ I shall argue that any overriding of an existing property right must either be with the right-holder’s consent or else be accompanied by just compensation. In consequence, where just compensation is impossible, and consent cannot be obtained, no overriding of the right is justifiable.

Taken separately, these conclusions are not novel (however distressing they may be to some), and they are not very specific about details. I hope to make up for such shortcomings by the soundness and comprehensiveness of the arguments I present. But my concern is, after all, with the philosophic foundations, not the legal superstructure. The effort is to place discussion of the details firmly into a comprehensive and clear statement of justificatory premises: into a comprehensive statement because philosophers have too often pushed their points as partisans for a particular brand of moral theory, ignoring sound arguments from other sources; into a clear statement because property theorists have too often operated with nothing more than an attractive metaphor as a starting point – a metaphor whose use, on inspection, is neither capable of coherent explication nor amenable to rational justification. The arguments here will be, in short, philosophic.

The need for a new theory

Philosophizing about property used to be risky. The history of property acquisition is a sordid one – examples of honest effort notwithstanding – and inequity in the distribution of goods has always been visible. An institution which has had to manage the results of so much injustice, and which has so often been used to perpetuate inequity, has an understandable aversion to moral analysis. Or perhaps more accurately, people who want their possessions protected as property are often hostile to attempts to find out whether what they want is morally justifiable. In uncivilized times, such hostility can be expressed in uncivilized ways.

This has not been lost on philosophers. Those who have defended private property have written soberly – casting whatever reservations they may have had into thickets which the propertied reader could avoid. Those who have attacked private property have usually shown the signs of intense frustration – rage, hyperbole, and despair at achieving any reform by rational persuasion. Reasoned argument, when it comes in conflict with the desire to get and keep something, is grossly overmatched.

The riskiness of writing about property has largely disappeared. The problem now is whether there is any longer any point in doing so. The main lines of argument for the general justification of property have long since been laid down; the vulnerable areas in those justifications have been identified; alternatives to private ownership have been proposed; weaknesses in those proposals have been explored. It seems unlikely that any new discussion could make a significant contribution to theory. And it seems even less likely that it could have significant practical consequences. The changes in property rights which have occurred in the last six or seven decades – and those which will doubtless occur in the next six or seven – are startling, to say the least. But they have not – nor are they likely to begin to – come about as the result of a clear and comprehensive new theory of property. The modern industrial state is so complex, its basic institutions so entrenched and interdependent, that basic changes come about more by the accidental confluence of particular interests than by design. The action guidance moral philosophy might provide thus seems a bit beside the point.

Yet property rights badly need philosophical discussion. Traditional philosophical arguments for and against various forms of property are seriously flawed. They are based on naive or hasty analyses of the concept of rights per se and property rights in particular. They rarely prove what they say they prove (a fact noticed by all their critics), but they often do prove some other interesting things (things their critics overlook). They usually address themselves to the question farthest removed from practical concerns – namely why there should ever be any property rights at all; what I call the problem of general justification. They consequently slight the most important question – namely what sorts of people should own what sorts of things and under what conditions; the problem of specific justification. Most damaging of all, they are each typically embedded in a general moral theory which makes it difficult to use one argument to support, augment, or restrict another. Utilitarians scorn claims founded on justice in original acquisition; advocates of the labor theory are reluctant to limit the claims of justice by weighing in the consequences for the promotion of good (as opposed to the demotion of evil); and the defenders of ‘ownership by the property worthy’ largely ignore both utility and the labor theory. Thus divided against themselves, the arguments for property rights are easy prey. At a minimum, the traditional arguments need to be re-examined and their results coordinated into a coherent theory.

Further, from a practical point of view, the existence of a sound, clear, and thorough philosophic analysis of the general theory of property rights would be useful. Changes in ownership rights are usually made piecemeal: zoning ordinances are passed; acquisition and use of water is controlled; new forms of wealth emerge; and as quickly as one form of taxation is instituted, ways of avoiding it are invented. Existing overviews of what sorts of property rights people ought to have are either simplistic visions of an ideal world (e.g. Edward Bellamy; Ayn Rand), political polemics (Proudhon; some of Marx), or tunnel-visioned defenses of the status quo or an idée fixe (Locke; the rest of Marx; Mill). Sober, practical people who are trying to make the system work have to operate either with these existing materials, unfortunately hardened into political ideologies, or with a confusing and largely incoherent set of intuitions amounting to little more than this: that people are entitled to the produce of their labor; that they ought to have the liberty to acquire things by their labor; that there is something (it is unclear just what) true about the claim that ‘first in time is first in right’; that things ought to be owned by the people who can and will use them properly; and that somehow, all of this has to be controlled by the principles of utility. In the face of this, it is not surprising that changes in ownership rights are made somewhat haphazardly. Philosophers should be able to provide a better foundation for practice than now exists.

Foundations for a new theory

And they can. The foundations for a new theory of property rights – a theory which is independent of the rigidity and ultimate mystery of seventeenth-century natural rights theory, as well as of the ruthlessly forward-looking concerns of utilitarian and revolutionary socialist theories – can be laid by a careful analysis of the relevant distinctions with regard to rights per se, property rights in particular, and the concept of the justification of a property right, together with an equally careful assessment of the traditional arguments for and against private property. By doing these things, this book aims to clear the way for a sustained, detailed, and coherent theory of the specific sorts of property rights people ought to have. Its object is thus to lay the foundations for a new theory of property.

The foundations I propose are not easily labelled. They are not extracted from a central, illuminating metaphor (like the Lockean mixing of one’s labor with things); nor are they easily categorizable as an ‘ism’. Rather, they consist in the results of my arguments on the whole range of illuminating metaphors and ‘isms’ which have traditionally been used to found theories of property rights. Specifically, I shall argue in what follows:

1. for specific conceptions of the central notions of rights in general, property rights in particular, and what it is to justify a property right;
2. for specific interpretations of traditional arguments for and against property rights – i.e. the arguments from first occupancy, labor, utility, liberty, and virtue or property worthiness;
3. that out of all this there are only four sound lines of justification for the institution of private property rights – one from utility; one from liberty; and two from the labor theory;
4. that any attempt to justify a particular sort of property right (e.g. unrestricted ownership of land) must be compatible with these general lines of justification – that is, be bound by any limitations they impose on all ownership;
5. that these lines of justification, together with what is sound in the standard anti-property arguments, impose severe restrictions upon the sorts of property rights which can today be justified – particularly with respect to ownership of scarce resources and the right to bequeath one’s property; and
6. in particular, I shall argue (a) that private ownership of land, water, fossil fuels, and mineral deposits – as generally defined in the Western democracies – must now be redefined; (b) that accumulations of wealth which tend to undermine democratic political processes must be controlled; and (c) that within the limits imposed by general justifying conditions, systems of property rights must allow as much acquisition as individuals want.

I do not pretend to say all that should be said on these topics. I do, however, hope to say enough to give a sound foundation to a muchneeded new theory. My conclusions on these six topics constitute that foundation. They are a foundation in the sense that they establish the points in the moral landscape upon which an institution of property rights can rest, and an outline for the definition of such an institution. But they are only a foundation: they define the limits of size and shape; they do not specify the details. Those details, the real substance of any theory of property rights, are in many instances very complex. Water rights, land rights, the rights of bequest and the other substantive elements of a specific theory, require separate treatment.

Private property and property rights per se

While some of what follows will be applicable to a discussion of property rights per se – that is, to systems of state or communal ownership as well as to systems of private ownership – it should be kept in mind that the primary aim here is the analysis of arguments for private property. Of course the discussion of the very concept of a property right applies across the board, and some arguments (notably those from utility) will justify a system of state or communal ownership in cases where they fail to justify private property. But again, the purpose here is to discuss the justifiability of private property. Having given this notice, I shall often drop the modifier ‘private’ in what follows. The context should always make clear what is meant.

Scarcity

As a final introductory note, it should be mentioned that the scarcity of goods is regarded by most writers as the central, controlling fact of the contexts in which problems about property rights arise. Indeed, many writers on property feel obliged to begin with remarks to the effect that, were it not for scarcity, there would be no need for the institution of ownership. There is, of course, a good deal of truth in this. Even if a good is not now actually scarce, its ownership can be problematic to the extent that the good can become scarce – e.g. by being used up or by being controlled by a few people. And if a good were to be inexhaustible and unlimitedly available to all, it is difficult to imagine that much of importance could hang on who owned what parts of it.

But like many seemingly obvious general pronouncements, it is not so clear, upon inspection, that this one is as uncontestable as it seems. If it is the case, as some defenders of property have supposed, that appropriating things is an essential part of the full development of a human personality, then it is not necessarily true that the elimination of scarcity eliminates the problems which call for a theory of property rights. For it may be, then, that the preservation (through a system of property rights) of one’s possessions has some importance just because those things are one’s own appropriations – regardless of whether or not they are scarce or likely to become scarce. I have therefore chosen not to make the usual deep bow to the notion of scarcity.

2 Property Rights

DOI: 10.4324/9781315780702-2

This chapter presents an analytical apparatus which is important for the sake of clarity and economy in the arguments to follow, but which is uncontroversial for present purposes. Those who are already familiar with its fundamentals will therefore not need to read the chapter closely. Mastery of the Hohfeldian definitions of ‘rights,’ ‘privileges,’ ‘powers,’ and ‘immunities’ (here claim rights, liberties, powers, and immunities) is important, however, as is familiarity with A. M. Honore’s analysis of the full or liberal concept of ownership. These things are summarized on pages 11–15 and 18–20, respectively. Readers who skip the review of Hohfeld should at least consult the discussion of ‘recipient rights’ on pages 14–15. All readers should note the remarks on the justification of property rights on pages 22–3.

Rights

‘Right’ has multiple meanings, and they are so deeply entrenched in both ordinary and technical usages that the best one can hope for is to keep the various meanings distinct and see to it that the distinctions are attended to. Discussions of property rights are often damaged by careless use of terms like ‘natural’ or ‘human’ rights, vagueness in distinguishing moral from legal rights, and an imprecise understanding of the root idea of a right. What I want to do here, as a prelude to discussing the complexity of the concept of a property right, is to state with some care what I take to be the root idea of a right, and then explicate the elements of that root idea. I shall argue that all the sorts of rights philosophers find it necessary to distinguish can be given adequately precise definitions by reference to those elements.

THE ROOT IDEA OF A RIGHT

When moral philosophers contrast rights with ideals, rights with personal or social goods, or rights with virtues, what they mean by ‘right’ seems to be something like this:

The existence of a right is the existence of a state of affairs in which one person (the right-holder) has a claim on an act or forbearance from another person (the duty-bearer) in the sense that, should the claim be exercised or in force, and the act or forbearance not be done, it would be justifiable, other things being equal, to use coercive measures to extract either the performance required or compensation in lieu of that performance.

(Occasionally, both performance and compensation are extracted, or alternatively, both compensatory and punitive damages. This translates, in ‘friendly’ situations, into performance or compensation plus apology.)

The leading characteristics of a right defined in this way are its correlation with the notion of duty, its involvement with coercion, the fact that it may be concerned with either acts or omissions, and the fact that violations require restitution. But it is just these characteristics (plus a few others) which quickly bring the definition under criticism. Must all right-holders be persons? (What about corporations? Animals? Trees?) Must all rights entail correlative duties? Are some rights always ‘in...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Table of Contents
• Acknowledgements
• 1 Introduction
• 2 Property Rights
• 3 The Argument from First Occupancy
• 4 The Labor Theory of Property Acquisition
• 5 Arguments from Utility
• 6 The Argument from Political Liberty
• 7 Considerations of Moral Character
• 8 Anti-Property Arguments
• 9 The Justification of Property Rights
• Notes
• Index