Property

I hope to persuade Charles Fried to think again about his developing views on distributive justice. Since I live at a certain remove from Cambridge, the best I can offer is a hypothetical dialogue with an imaginary person whose views seem, to me at least, of a Friedian inspiration. My central question deals with the way Fried establishes his rights to things he candidly concedes he does not deserve. To present my problems, I shall begin with a simpler case than (...) those – involving kidneys and talents – that Fried makes central to his discussion. Rather than starting with these rather special goods, I find it clarifying to focus first on more garden variety commodities – which, to emphasize their character, I shall call apples. (shrink)

This book surveys the leading modern theories of property - Lockean, libertarian, utilitarian/law-and-economics, personhood, Kantian and human flourishing - and then applies those theories to concrete contexts in which property issues have been especially controversial. These include redistribution, the right to exclude, regulatory takings, eminent domain and intellectual property. The book highlights the Aristotelian human flourishing theory of property, providing the most comprehensive and accessible introduction to that theory to date. The book's goal is neither to cover every conceivable theory (...) nor to discuss every possible facet of the theories covered. Instead, it aims to make the major property theories comprehensible to beginners, without sacrificing accuracy or sophistication. The book will be of particular interest to students seeking an accessible introduction to contemporary theories of property, but even specialists will benefit from the book's lucid descriptions of contemporary debates. (shrink)

This paper explores the nature of, and justification for, copyright in academic texts in the light of recent developments in information technology, in particular the growth of electronic publication on the internet. Copyright, like other forms of property, is best thought of as a cluster of rights. A distinction is drawn within this cluster between first order `control rights' and higher order `commodity rights'. It is argued that copyright in academic texts is founded on its role as a means to (...) allow academics to fulfil their role responsibilities. While the possession and exercise by academics of commodity rights can be thus justified in the case of mechanical print-based publication, since this helps make possible the reproduction and dissemination of academic texts, they cannot be so justified in the case of electronic publication. There are nevertheless good reasons to retain various control rights. (shrink)

Changes in attitude toward intellectual property are covered here.

The metaphor of property as a “bundle of sticks: or “bundle of rights” leads to the “disintegration of property”: a concept of property that is too incoherent, ill-defined, and malleable to be meaningful. This article identifies several theoretical problems with the bundle of rights metaphor, and proposes a new metaphor of property as a web of interests. The “web of interests” metaphor describes property as interests – including responsibilities, as well as rights – that people, groups, and entities share in (...) objects of those interests (whether tangible or intangible objects). These interests vary with the nature or characteristics of the object, which is at the center of the web. The object's specific characteristics matter both legally and socially. The article identifies 15 different legally relevant categories of object characteristics, as well as 9 strands of connection in the web's relationships. The “web of interests” metaphor is built upon emerging environmental, personhood, and expectations theories of property, as well as empirical observation of both judicial and social practice. The article examines several areas of property law in light of the insights gained from this new metaphor, including: 1) regulatory takings and land use; 2) nature-oriented limitations inherent in land and water rights (e.g., public trust doctrine, natural use doctrine, nuisance doctrine); 3) property interests in wildlife and wildlife habitat; 4) property interests in corporations; and 5) the right to exclude and expressive use. (shrink)

After a short historical survey of philosophical views on property, the article contains an analysis of the argument which justifies property by referring to the universal respect due to anyone’s right to use any thing for any purpose. Usage 224 JOVAN BABIĆ SVOJINA ҄ FILOZOFSKA ANALIZA: ARGUMENT of things for the realization of set ends (or goals) is among the conditions of action/ agency. The capacity of freedom as a specific causal power in real world is dependent on the possibility (...) of using things as means. However, without a real prospect to finish the process of realization of set goals, this causal power would not be real. Property is a scheme within which this prospect becomes a real possibility. Property is thus a condition of effective successful purposeful agency. In property the normative position of all others, besides the owner, has been changed, as they do not have the right to use things possessed for their ends, although they have a right to use any non-possessed thing as a means for whichever end they might set. As a right, property entails, first, the obligation to respect the fact of any established possession, and, second, an obligation to accept and recognize the established possession as ownership, which does not depend on the fact of factual physical control of the property. Ownership is therefore a guarantee of future possession. For this to be established there is a need for an explicit recognition from all others; however this recognition is normatively necessary for everybody, as no-one has a right to withdraw the recognition of a legitimate right to property. This comes from the ontological and axiological difference between persons and things: persons have a right to use and possess unpossessed things as means for realization of ends they set. (shrink)

This article explores the British anti-slavery writings of the mid- to late 18th century, and the meanings which they gave to the idea of owning a property in the person. It addresses the construction of a particular moral and political landscape where freedom was understood as both a kind of property and as non-domination, and slavery was constructed as a form of theft, and as the exercise of arbitrary power. This created a complex moral space, where possession, commerce, savagery, tyranny (...) and the emergence of race were all caught up with each other and entangled with the concept of consent. The article concludes with the suggestion that our current understandings of slavery continue to be informed by our notions of contract and consent, and so by conceptions of freedom and ownership that take us back to the tensions and debates of the 18th century. (shrink)

Departing from most studies of property, this book focuses directly on the concept of ownership, on the complex structure of property rights, and the relation between that structure and distributive justice. The traditional view that ownership must amount to full sovereignty over what is owned is abandoned. A new theory of property is put forward, one which more accurately reflects the various social values that property ownership protects, but which also makes egalitarian economic principles more compelling and powerful.

In this paper, I examine arguments from Stephen Munzer and A. John Simmons and find that historical entitlement arguments for private property ownership are either too weak to justify poverty, as they must if they are to defend a property system wherein historical entitlement claims dominate, or they are subject to Jeremy Waldron’s “Proudhon Strategy.” I conclude that a general rights-based property system can accommodate the attractive aspects of historical entitlement arguments.

This essay examines the far-reaching attack on individualism and property rights which characterized the Progressive Era of the early twentieth century. Scholars and political figures associated with Progressivism criticized the individualist values of classical liberalism and rejected the traditional notion of limited government espoused by the framers of the Constitution. They expressed great confidence in regulatory agencies, staffed by experts, to effectuate policy. Progressives paved the way for the later triumph of statist ideology with the New Deal in the 1930s.

This paper challenges the malleability of the idea of property as a relative, indeterminate "bundle of rights", which appears to dominate property doctrine at least since Ronald Coase's "The Problem of Social Cost". Focusing on the core goals of property regimes, the paper proposes an alternative view of property rights - one that is centered on the ability of owners to appropriate the benefits of their assets in the face of a threat from numerous potential adversaries, rather than their ability (...) to contract such assets away within a bilateral context. The paper demonstrates how the shift to a multilateral, appropriability-based analysis allows for a fuller account of what must be the "core" or "baseline" of property rights. Using this account, the paper offers an evaluation of the relationship between such "core" rights and other types of rights traditionally associated with property doctrine, such as rights that have historically been granted to owners under the guise of property rights, contractual rights vis-a-vis third parties and constitutional rights against the public at large. (shrink)

In contrast to eminent historical philosophers, almost all contemporary philosophers maintain that slavery is impermissible. In the enthusiasm of the Enlightenment, a number of arguments gained currency which were intended to show that contractual slavery is not merely impermissible but impossible. Those arguments are influential today in moral, legal and political philosophy, even in discussions that go beyond the issue of contractual slavery. I explain what slavery is, giving historical and other illustrations. I examine the arguments for the impossibility of (...) contractual slavery propounded in the Enlightenment and their offspring expounded in recent writings, including those by Barnett, Cassirer, Ellerman, Rawls, Roberts-Thomson, Satz and Steiner. I show that they involve confusions between abilities and rights, free will and freedom, directing and doing, what may be true sequentially and what may be true simultaneously, default rights and universal rights, impermissibility and impossibility, and metaphorical and literal uses of language. (shrink)

When philosophers put forward claims for or against 'property', it is often unclear whether they are talking about the same thing that lawyers mean by 'property'. Likewise, when lawyers appeal to 'justice' in interpreting or criticizing legal rules we do not know if they have in mind something that philosophers would recognize as 'justice'. J. W. Harris here examines the legal and philosophical underpinnings of the concept of property and offers a new analytical framework for understanding property and justice.

An exposition of Karl Marx’s argument in the Grundrisse for the logical development of money, this essay is divided into three parts. Since Marx is concerned to distinguish himself and his method from that of the seventeenth century political economists, I begin my paper with a brief reflection on “the scientifically correct method” or the “theoretical method” (Grundrisse 101 and 102). The second part of this paper considers how Marx justifies beginning his reflection with the concept of production in general. (...) To understand the importance that Marx attributes to production, one must also appreciate the way in which distribution, exchange, and consumption belong to the sphere of production. In the remaining pages of this section of my paper, then, I attempt to reconstruct Marx’s argument for the way in which these concepts (distribution, exchange, and consumption) are to be understood in relation to the sphere of production. (shrink)

I discuss J. G. Fichte’s theory of property and its implications in relation to the claim made by C. B. Macpherson that, by broadening the meaning of the term ‘property’, it becomes possible to reconcile two principles of liberal democratic theory that seem to be at odds with each other: the right to property, understood as the right to exclude others from the use or benefit of something, and the right to use and develop one’s capacities. I argue that Fichte’s (...) broad conception of property can be viewed as an example of how this might be done. I also show, however, that Fichte demonstrates that a political reconciliation of these rights is demanded by the conceptual reconciliation of them, and that such political reconciliation may demand placing considerable limitations, in the form of state regulation and the redistribution of resources, on human freedom. (shrink)

Misunderstanding of the word mine and its shifting relations to 'pro-attitudes' inspired much of Aristotle's attack on collectivism at Politics 1261B 15ff. Similar misunderstandings contribute to certain criticisms leveled by modern conservatives like Goldwater against 'welfarism', they presuppose confused psychological and ethical doctrines. Thus semantically necessary truths may be misconstrued as entailing contingent propositions about political and economic arrangements. Different confusions about mine and 'pro-attitudes' lend a correspondingly specious aura of certainty to some Platonic and Marxist claims. The ownership model (...) of mine impedes our understanding of men. (shrink)

This is a review of Gerald Gaus's recent book, _The Order of Public Reason_.

An absolutist concept of property has the power to shape and constrain the public imagination. Libertarian theorists normatively embrace this concept. Yet its influence extends far beyond these proponents, shaping the views of an otherwise diverse array of theorists and activists. This limits the ability of environmentalists, among others, to respond coherently to challenges from property rights advocates in the U.S. I sketch an alternative concept--rooted in practice--that understands private property as necessarily embedded in social and ecological relations, rather than (...) constrained by these relations. I argue that this concept can prefigure a more robust environmentalism. (shrink)

Mike Otsukaʼs book aspires to do more than its title discloses. Libertarianism without Inequality (Oxford University Press, 2003) does not merely aim to reconcile liberty and equality (that is handled without remainder in the first chapter) but to draw the outlines of a complete, and distinctly Lockean, political theory. Rather than starting from first principles, Otsuka explores several specific issues only loosely connected to each other, hoping that these might add up to a complete political vision. Though the discussion is (...) clearly tinted in Lockean colours, his conclusions are always provocative and difficult to swallow, even for modern disciples of Locke. Thus he argues for the following theses. (shrink)

Abstract 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)

What, if any, is the problem with treating bodies as objects or property? Is there a defensible basis for seeing bodies as different from "other" material resources? Or is thinking the body special a kind of sentimentalism that blocks clear thinking about matters such as prostitution, surrogate motherhood, and the sale of spare kidneys? I argue that the language we use does matter, and that thinking of the body as property encourages a self/body dualism that obscures the power relations involved (...) in all contracts that cedes authority over the body. Recognising the self as embodied, however, also makes it harder to insist on sharp distinctions between activities that involve the body and those that "just" involve the mind, hence harder to justify refusing payment for explicitly body services while condoning it for those to which the body is more incidental. I therefore provide a modest defence of monetary compensation for those who "donate" bodily products or services. Compensation does not, however, mean markets for there is at least one sense in which the body is special. This is that more so, and more intrinsically than other markets, markets in body parts or bodily services depend on inequality. I use this to make a case against such markets. (shrink)

THE MAIN OBJECTIVES of the following discussions are, first, to show the logical inconsistency of Hegel’s theory of the necessity of private property and, second, to show its exegetical inconsistency with the most plausible and consistent interpretations of Hegel’s theory of the self and its relation to the state in Ethical Life. I begin with the latter objective, by distinguishing three basic conceptions of the self that can be gleaned from various passages in the Philosophy of Right. I suggest viable (...) connections between each of these three conceptions and three respective interpretations of what I call the Hegelian requirement, i.e., that the individual be able to identify his personal interests and values with those of the state [141, 147, 147r, 151, 155].1 This can be understood as the requirement that the individual be capable of transcending certain limits of individuality in the service of broader and more inclusive political goals. I argue that Hegel’s theory of Personality and the requirements of Ethical Life in the state commit him to a conception of the self as capable of achieving such selftranscendence through action, despite appearances to the contrary that suggest that self-transcendence is to be primarily achieved through acquisition of various kinds. I then try to demonstrate the logical inconsistency of Hegel’s theory of the necessity of private property. I argue that the fallacies inherent in his exposition of this theory can be explained by his presupposing a conception of the self which both is inadequate to meet the criteria of Hegel’s theories of Personality and Ethical Life and also, therefore, fails the Hegelian requirement. (shrink)

When Benjamin Franklin suggested that man is by nature a tool-making animal, he summed up what was for his fellow Americans the common sense of the matter. It is not, then, surprising that, when Britain's colonists in North America broke with the mother country over the issue of an unrepresentative parliament's right to tax and govern the colonies, they defended their right to the property they owned on the ground that it was in a most thorough-going sense an extension of (...) themselves: the fruits of their own labor. This understanding they learned from John Locke, who based the argument of his Two Treatises of Government on the unorthodox account of providence and of man's place within the natural world that Sir Francis Bacon had been the first to articulate. All of this helps explain why the framers of the American constitution included within it a clause giving sanction to property in ideas of practical use. (shrink)

The paper is an analysis of Rousseau’s concept of property. It shows that Rousseau wants to draft a new system of politics that will not forbid private property but will limit its scale. It aims to clarify that Rousseau owes much to John Locke’s theory and even adopts Locke’s definition that it is a basic purpose of the social contract to protect the citizen’s property. It is argued that in spite of these similarities Rousseau’s account differs fundamentally from Locke’s. Having (...) a right of ownership to something for Locke means to be entitled to exclude anybody else from it: to say “this is mine” in Locke is synonymous to “it is not yours”. For Rousseau having a right of ownership to something implies a self-limitation by the proprietor: to say “this is mine” in Rousseau signifies “everything else is not mine”. While property rights in Locke have the purpose of legitimizing “pleonexia” and economic inequality, Rousseau tries to use them as restrictions to citizens’ desires and greed. (shrink)

Even his peers called Locke's political philosophy “The ABC of Politics“: not only does he clarify why one should exit the state of nature (government guarantees protection of life, freedom, and wealth) but also what a good government has to provide. A government should protect individuals from assaults of fellow citizens, other countries, and itself. Locke also shows how to put limits to the power of political institutions: by division of powers, by law, by neutral judges, and by making people (...) trust their government -- and having the right to revolt when their trust is betrayed. This book provides a cooperative commentary to all important topics of Locke's "Two Treatises". With entries by Wolfgang von Leyden, Bernd Ludwig, Peter Niesen, Francis Oakley, Birger P. Priddat, Michaela Rehm, Michael Schefczyk, Ludwig Siep, A. John Simmons, und Simone Zurbuchen. (shrink)

This paper analyzes court rulings on tissue samples as property and critiques objections that have been raised to the recognition of DNA samples as personal property. The cases are: Moore v. Regents of the University of California (1988, 1990), Greenberg v. Miami Children’s Research Institute (2003), and Washington University v.Catalona (2007). The paper argues that it is possible for the law to support both individual privacy and property rights in DNA, recognizing nevertheless that some unresolved questions remain, including what exercising (...) those rights means on a practical level. Finally, it offers suggestions for changes in law based on those considerations. (shrink)