This paper challenges the view, commonly held inbiolaw and bioethics, that there can be no proprietaryrights in our own bodies or body parts. Whether thestarting point is the post-intervention informedconsent regime of Article 22 of the Convention ofHuman Rights and Biomedicine or the traditional(exclusionary) understanding of private property it isargued that property in our own bodies or body partsis presupposed. Although these arguments do notdemonstrate that there is property of this kind (forthat, a full-scale justification of the institution ofprivate property (...) would be required), they suggestnevertheless that the commonly held view has animmanent property logic that has not yet been drawnout or appreciated. (shrink)

This article offers three reflections on the nature of the metaphysical ‘wall’ erected between the ‘Included’ and the ‘Excluded/Other’ by the concept of private property and its implementation in a state’s legal apparatus. The first reflection explores the reality of the concept of private property, using Louis Althusser’s conception of ideology, in order to demonstrate that the liberal conception of private property masks power operating on two levels: the formal, repressive state apparatus, and the deeper, the personal, the real, the (...) actual level, which allows the Included to act upon ego in ways that negatively affect the Excluded/Other found in the ideological state apparatus. The second argues that the masked power that is private property permits war to be waged by the Included as against the Excluded/Other at two levels: intra-state and inter-state. This reveals a paradox in the distinction between Included and Excluded/Other: while the distinction demonstrates the allocation of power over resources, the reality is that every individual on earth is both Included and Excluded/Other. The final reflection briefly considers what could replace private property as a means of allocating goods and resources within a society. (shrink)

According to the negative principle of appropriation a person can acquire an unowned resource if doing so respects a certain condition (the Lockean proviso). Contrary to some views, a proviso of this sort is not incompatible with libertarianism. Moreover, no unilateral powers of acquisition can fail to consider the impact on the interests of others. Hence, a doctrine of appropriation must incorporate such a proviso. However, the several interpretations such a proviso can take on various dimensions will be either implausible (...) as a way of taking into consideration the interests of others, or unable to generate the kind and extent of property rights libertarians typically endorse. (shrink)

Zusammenfassung: Der Beitrag systematisiert, kontextualisiert und evaluiert den eigentumstheoretischen Hintergrund der derzeit breit geführten Debatte um bezahlbaren Wohnraum in deutschen Großstädten. Ausgehend von der These, dass hinter der sogenannten ‚Wohnungskrise‘ eigentlich eine ‚Bodenkrise‘ steht, werden drei zentrale Konflikte um die politische Rahmung des Eigentums an Boden diskutiert: die Frage nach dem Gebrauch, der Verwertung und dem Eigentumsschutz. Dabei werden die normativen Potentiale eines immanenztheoretischen, apriorisch pflichtgebundenen Eigentumsverständnisses für eine zeitgemäße Wohnraum- und Bodenpolitik ausgelotet.

The parceling of land into real estate is more than a simple geometrical affair. Real estate is a historical product of interaction between human beings, political, legal and economic institutions, and the physical environment. And while many authors, from Jeremy Bentham to Hernando de Soto, have drawn attention to the ontological (metaphysical) aspect of property in general, no comprehensive analysis of landed property has been attempted. The paper presents such an analysis and shows how landed property differs from other types (...) of property in a way which implies a special role for political and economic philosophy of property rights in land. This is the Chinese translation of "The Metaphysics of Real Estate", Topoi, 20: 2 (September 2001), 161–172. (shrink)

I defend the Doctrine of Doing and Allowing: the claim that doing harm is harder to justify than merely allowing harm. A thing does not genuinely belong to a person unless he has special authority over it. The Doctrine of Doing and Allowing protects us against harmful imposition – against the actions or needs of another intruding on what is ours. This protection is necessary for something to genuinely belong to a person. The opponent of the Doctrine must claim that (...) nothing genuinely belongs to a person, even his own body. (shrink)

The Body Ownership Thesis states that each person owns her body. I address a prominent objection, the Generation Problem: the Body Ownership Thesis apparently implies that parents own their children: as we own the fruit of our property, if a parent owns her own body, she must own her child and her child's body. I argue that a person does not own the fruit of her property when that fruit is a person or the body of a person. Persons have (...) conclusive title to their bodies, but only defeasible title to the fruits of their bodies. (shrink)

The Body Ownership Thesis states that each person owns her body. I address a prominent objection, the Generation Problem: the Body Ownership Thesis apparently implies that parents own their children: as we own the fruit of our property, if a parent owns her own body, she must own her child and her child’s body. I argue that a person does not own the fruit of her property when that fruit is a person or the body of a person. Persons have (...) conclusive title to their bodies, but only defeasible title to the fruits of their bodies. (shrink)

Political liberals assume an accessibility requirement, which means that, for ensuring civic respect and non-manipulation, public officials should offer accessible reasons during political advocacy. Recently, critics have offered two arguments to show that the accessibility requirement is unnecessary. The first is the pluralism argument: Given the pluralism in evaluative standards, when officials offer non-accessible reasons, they are not disrespectful because they may merely try to reveal their strongest reason. The second is the honesty argument: As long as officials honestly confess (...) their beliefs after offering non-accessible reasons, disrespect and non-manipulation do not occur. This paper defends the accessibility requirement and asserts that these two arguments overlook a unique feature of the political domain. While all citizens collectively own political power as a corporate body, an official does not privately own her political power. Instead, she is a trustee who has a duty to act on behalf of the corporate body, that is, she has to make decisions on grounds that are accessible to others. This duty explains why, despite pluralism, the accessibility requirement is necessary. Moreover, given that political decisions are profoundly influential to each person, requiring people to be honest is ineffective in discouraging disrespectful and manipulative acts. (shrink)

The subject of this article is the Rawlsian right to personal property. Adequate discussion of this right has long been absent from the literature, and the recent rise in interest in other areas of Rawlsian thought on property makes the issue particularly pertinent. The right to personal property as proposed by orthodox Rawlsians – in this article, the position is represented by Rawls himself – is best understood, I claim, either as a right to be able to privately own housing (...) and personal items or as a right to actually own these things. I argue, however, that the resources of a Rawlsian theory cannot justify a basic right to property which is as extensive as this. Instead, what can be justified is a more limited set of rights, comparable with the rights we have over objects that we rent. Rawlsian justice, then, has a more radical implications in terms of basic property rights than has previously been thought. (shrink)

Private property forms the bedrock of the business/society relationship in a market economy. In one way or another most societies limitwhat people can claim as property as well as theextent of claims they can make regarding it. In the international arena today intellectual property rights are a focal point of debate. Many developing countries do not recognize the monopoly claims of patents and copyrights asserted by business as legitimate. This paper reviews contemporary areas of dispute and then presents the tasks (...) facing the construction of a fair intellectual property rights regime. (shrink)

The thesis that an analysis of property rights is essential to an adequate analysis of the state is a mainstay of political philosophy. The contours of the type of government a society has are shaped by the system regulating the property rights prevailing in that society. Views of this sort are widespread. They range from Locke to Nozick and encompass pretty much everything else in between. Defenders of this sort of view accord to property rights supreme importance. A state that (...) does not sufficiently respect property rights is likely to be a totalitarian state, and will also be likely to fail to respect rights of other sorts. (shrink)

G.A. Cohen has produced an influential criticism of libertarian‐ism that posits joint ownership of everything in the world other than labor, with each joint owner having a veto right over any potential use of the world. According to Cohen, in that world rationality would require that wealth be divided equally, with no differential accorded to talent, ability, or effort. A closer examination shows that Cohen's argument rests on two central errors of reasoning and does not support his egalitarian conclusions, even (...) granting his assumption of joint ownership. That assumption was rejected by Locke, Pufendorf and other writers on property for reasons that Cohen does not rebut. (shrink)

The growing scope of gamete donation and themanipulation of gametes makes it essential to developa coherent theory of the nature of gametes and theclaims which may be made in relation to them. Thenature of gametes is ambiguous, they blur thedistinctions between persons and property, but thecurrent legal framework which governs gamete donationand manipulation fails to address their status. Thisleaves unanswered fundamentally important questionsabout control of processes involving gametes andrights to use or control the gametes themselves andthe information which they represent. (...) These areclaims which are rooted in the concept ofproperty. A property based analysis highlights thethemes of autonomy, personhood and control which lieat the heart of the claims made in relation to gametesand an account based on the notion of property forpersonhood offers a more coherent justification forrecognising claims in gametes and mediating disputes. This perspective exposes the inadequacies andinconsistencies of the legal construction of gametesand the legal regulation of gamete donation. Thepresent legal framework has not sought to develop acoherent construction of gametes, but to constrain thepractices of the assisted reproductive technologies(including gamete donation) within a framework whichis presented as least damaging to the traditionalideologies of the creation of the family. (shrink)

This paper argues that the new commercial and quasi-commercial activities of medicine, scientists, pharmaceutical companies and industry with regard to human tissue has given rise to a whole new way of valuing our bodies. It is argued that a property framework may be an effective and constructive method of exploring issues arising from this. The paper refers to A M Honoré’s theory of ownership and aims to show that we have full liberal ownership of our own bodies and as such (...) can be considered to be self-owners. (shrink)

This article is an exercise in computational jurisprudence. It seems clear thatthe field of AI and Law should draw upon the insights of legal philosophers,whenever possible. But can the computational perspective offer anything inreturn? I will explore this question by focusing on the concept of OWNERSHIP,which has been debated in the jurisprudential literature for centuries. Althoughthe intellectual currents here flow mostly in one direction – from legal philosophy to AI – I will show that there are also some insights to (...) be gained from a computational analysis of the OWNERSHIP relation. In particular, the article suggests a computational explanation for the emergence of abstract property rights, divorced from concrete material objects. (shrink)

Adolf Reinach belongs to the Brentanian lineage of Austrian Aristotelianism. His theory of social acts is well known, but his account of ownership has been mostly overlooked. This paper introduces and defends Reinach’s account of ownership. Ownership, for Reinach, is not a bundle of property rights. On the contrary, he argues that ownership is a primitive and indivisible relation between a person and a thing that grounds property rights. Most importantly, Reinach asserts that the nature ownership is not determined by (...) positive law but presupposed by it. Some have objected that such realism raises insuperable difficulties as to the origin of ownership, difficulties that could only be dealt with under a more conventionalist approach. I argue that the independence of the nature ownership from positive law is, in fact, compatible with the claim that its existence is dependent on human conventions. (shrink)

This article advances what it calls the ‘Impossibility Result’: it is impossible to claim that the reduction of exploitation leads to the improvement of efficiency. The Impossibility Result is the inevitable result of the proposed conceptual difference between ‘injustice’ and ‘exploitation’. Injustice occurs when one member of a society deviates from the norms and the legal rules concerning how one should treat other members of that society. Exploitation occurs when one member of a society takes advantage of entities such wild (...) animals, cattle, a field of vegetables, or other people that lie outside the boundary of that society. In many cases of exploitation, the exploited may derive some benefit, as in the case when enslavement is better than death. In other cases of exploitation, the exploited may derive zero benefit, called here ‘harm’, as in the case when a deer is hunted. (shrink)

Yirminci yüzyılın son çeyreğinde modern dönem toplum sözleşmeci geleneği yeniden canlandıran John Rawls, hak kavramını iyi kavramına öncelikli kıldığı ahlak teorisinde adil ve iyi düzenlenmiş bir toplumun nasıl yaratılacağı yönünde teorik bir açılım yapmıştır. Bireyi kendine has bir şekilde ahlaki, eşit ve rasyonel özne olarak kodlayan Rawls, bu bireyden yola çıkarak teorik öncüllerini oluşturmuş ve geliştirdiği teori aracılığıyla özgürlük ve eşitlik nosyonlarını uzlaştırma çabasına girmiştir. Rawlsın bu çabasına yönelik literatürde yer alan tartışmalar; ya Rawlsın adalet ilkelerinin birbirini çürüttüğü ya da (...) bu ilkelerin birbirine diyalektik olarak zorunlu bir bağlılık arz ettiği yönündeki argümanlardan oluşmaktadır. Bu makalede ise; sorunun Hakkaniyet Olarak Adalet İlkeleri’nin birbiriyle çelişip çelişmediği veya birbirini zorunlu olarak tamamlayıp tamamlamadığı olmadığı özellikle tartışılarak, bu ilkeleri uygulayacak olan Rawlsçı Mülk Sahipliği Demokrasisi Modelinde bile özgürlük ve eşitliğin Rawslın beklentisi doğrultusunda toplumsal boyutta yaşanamayacağı yönünde argümanlar öne sürülmüştür. (shrink)

This paper argues that the practical implementation of blockchain technology can be considered an institution of property similar to legal institutions. Invoking Penner's theory of property and Hegel's system of property rights, and using the example of bitcoin, it is possible to demonstrate that blockchain effectively implements all necessary and sufficient criteria for property without reliance on legal means. Blockchains eliminate the need for a third-party authority to enforce exclusion rights, and provide a system of universal access to knowledge and (...) discoverability about the property rights of all participants and how the system functions. The implications of these findings are that traditional property relations in society could be replaced by or supplemented with blockchain models, and implemented in new domains. (shrink)

This paper argues that the Lockean proviso can be utilized as a relevant principle of justice for food security under global climate change. Since reducing GHG emissions is key to enhancing food security, we suggest a global food security scheme that systematically allots, among all people, access to GHG sinks in food systems impacted by global climate change. For consideration of the scheme, it is important to have a principle of justice. Furthermore, it should incorporate the value of fairness. A (...) relevant principle of climate justice for food security should meet the following criteria: (1) the parties concerned under the scheme are states; (2) fairness does not undermine the requirement that the basic needs of all people must be met; (3) when determining fair burdens, a fair distribution of the rights to use GHG sinks should be sensitive both to each state’s responsibility for its GHG emissions and to (4) each state’s effort to reduce such emissions. With them in mind, first, we argue that the Lockean proviso can provide legitimate guidance for each state. Second, the Lockean proviso reasonably enjoins that a state has a right to a food system that secures its citizens’ basic needs, and a duty to meet the basic needs of other people. Third, the Lockean proviso can be deployed as a principle of both global justice and intergenerational justice for food security. Finally, the Lockean proviso enables us to count the reduction of GHG emissions by each state as “the fruits of its labors”. (shrink)

NIMBY (Not In My Backyard) refers to an oppositional attitude from local residents against some risk generating facility that they have been chosen to host either by government or industry. The attitude is claimed to be characteristic of someone who is positive to a facility but who wants someone else to be its host. Since siting cannot be provided if everyone has this attitude, society ends up in a worse situation. The attitude is claimed to be egoistic and irrational. Here (...) it is argued that the NIMBY critique rests on questionable assumptions about the rightness of weighing total benefit against total cost. This weighing-principle will sometimes have to yield so that the rights of individuals can be acknowledged. (shrink)

This article argues that teachers of environmental ethics must more aggressively entertain questions of private property in their work and in their teaching. To make this case, it first introduces the three primary positions on property: occupation arguments, labor theory of value arguments, and efficiency arguments. It then contextualizes these arguments in light of the contemporary U.S. wise-use movement, in an attempt to make sense of the concerns that motivate wise-use activists, and also to demonstrate how intrinsic value arguments miss (...) the mark. Finally, it offers some suggestions about further directions for environmental ethics, reasoning that there is a good deal of headway to be gained for environmental ethics by accepting that nature can be owned as property, but nevertheless engaging the idea of private property critically. (shrink)

The preservationist duties that conservationists would lay upon landowners to protect the natural environment obviously interfere with what those people do with their land. That is often taken to be an equally obvious ? albeit possibly justifiable ? violation of their rights in that property. But to say that, as landowners often do, would be to imply that property rights somehow embrace a ?right to destroy?. Closer inspection suggests that they do not. That would be a further right, additional to (...) and independent of all the component rights standardly associated with the right to private property. A right to destroy is implicit neither in the concept nor in the justifications of property rights, as they are standardly conceived. Conservationist policies cannot, therefore, properly be opposed on the grounds that they would necessarily violate people's property rights. (shrink)

Like the ownership of physical property, the issues computer software ownership raises can be understood as concerns over how various rights and duties over software are shared between owners and users. The powers of software owners are defined in software licenses, the legal agreements defining what users can and cannot do with a particular program. To help clarify how these licenses permit and restrict users’ actions, here I present a conceptual framework of software rights and duties that is inspired by (...) the terms of various proprietary, open source, and free software licenses. To clarify the relationships defined by these rights and duties, this framework distinguishes between software creators (the original developer), custodians (those who can control its use), and users (those who utilise the software). I define the various rights and duties that can be shared between these parties and how these rights and duties relate to each other. I conclude with a brief example of how this framework can be used by defining the concepts of free software and copyleft in terms of rights and duties. (shrink)

There is an urgent need for reconstructing models of property to make them more women-friendly. However, we need not start from scratch: both ‘canonical’ and feminist authors can sometimes provide concepts which we can refine and apply towards women’s propertylessness. This paper looks in particular at women’s alienation from their reproductive labour, building on Marx and Delphy. Developing an economic and political rather than a psychological reading of alienation, it then considers how the refined and revised concept can be applied (...) to concrete examples in global justice for women: in particular, the commercialisation of embryonic and fetal tissue in the new stem cell technologies. (shrink)

Indigenous cultural possessions constitute a diverse global issue. This issue includes some culturally important, intangible tribal objects. This is evident in the Australian copyright cases viewed in this study, which provide examples of disputes over traditional Indigenous visual art. A proposal for the legal recognition of Indigenous cultural possessions in Australia is also reviewed, in terms of a new category of law. When such cultural objects are in an artistic form they constitute the tribe's self-presentation and its mechanism of cultural (...) continuity. Philosophical arguments for the legal recognition of Indigenous intellectual `property' tend to assume that the value of Indigenous intellectual property is determinable on external criteria. (shrink)