Property

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources (...) and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles enables property rights to solve environmental problems related to natural resource extraction as well. (shrink)

The environment has often been thought to consist of resources that are unowned, and hence subject to the well-known tragedy of the commons. But in recent years, property ideas have been increasingly recruited for environmental protection, in a manner that appears to vindicate the view that property rights evolve along with the needs for resource management. Nevertheless, property regimes have some pitfalls for environmental resources: the relevant parties may not be able to come to agreement; property regimes may be weak (...) or ineffective; they may be aimed at purposes inconsistent with environmental protection; property rights definitions may not work well for environmental resources; modern property regimes may promote monoculture rather than diverse environments. This essay describes these problems and asks to what degree they apply to a new effort to use property rights approaches, namely cap-and-trade programs to control greenhouse gases. It concludes that property rights, while imperfect and something of a retreat from a regime of complete liberty, may offer gains for environmental protection. But success will depend on close attention to the accountability and effectiveness of the governmental institutions necessary to support environmental property regimes. (shrink)

William Perm summarized the Magna Carta thus: “First, It asserts Englishmen to be free; that's Liberty. Secondly, they that have free-holds, that's Property.” Since at least the seventeenth century, liberals have not only understood liberty and property to be fundamental, but to be somehow intimately related or interwoven. Here, however, consensus ends; liberals present an array of competing accounts of the relation between liberty and property. Many, for instance, defend an essentially instrumental view, typically seeing private property as justified because (...) it is necessary to maintain or protect other, more basic, liberty rights. Important to our constitutional tradition has been the idea that “[t]he right to property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” Along similar lines, it has been argued that only an economic system based on private property disperses power and resources, ensuring that private people in civil society have the resources to oppose the state and give effect to basic liberties. Alternatively, it is sometimes claimed that only those with property develop the independent characters that are necessary to preserve a regime of liberty. But not only have liberals insisted that, property is a means of preserving liberty, they have often conceived of it as an embodiment of liberty, or as a type of liberty, or indeed as identical to liberty. This latter view is popular among contemporary libertarians or classical liberals. Jan Narveson, for instance, bluntly asserts that “Liberty is Property,” while John Gray insists that “[t]he connection between property and the basic liberties is constitutive and not just instrumental.”. (shrink)

S’il n’existe qu’un seul problème intellectuel et culturel vraiment sérieux concernant le capitalisme, c’est celui du manque d’une défense morale soutenue et largement connue, pour ne pas dire acceptée, de l’institution des droits de propriété privée.Il n’y a pas de doute, dans le monde actuel, qu’une société dotée d’une infrastructure légale où cette institution fait défaut connaisse un grave désordre économique. Le fait de ne pas respecter et protéger légalement l’institution de la propriété privée — et ses corollaires, comme la (...) liberté de contracter et de poser les termes par les parties en affaire — a provoqué les faiblesses économiques à travers le monde.Sans une défense morale, l’institution de la propriété privée, qui est la source de beaucoup d’ avantages pour nous tous, restera pour toujours vulnérable aux critiques, du style de celle de Karl Marx qui disait que “le droit de l’homme à la propriété est le droit de jouir de ses possessions et d’en disposer arbitrairement, sans souci des autres hommes, indépendamment de la société, le droit de l’égoïsme”.Cet essai proclame que contrairement aux sentiments et impressions répandus, l’institution des droits de propriété privée est en accord avec la conception pratique de la moralité humaine.If there is one really serious intellectual and cultural problem with capitalism it stems from the lack of a sustained and widely known, let alone accepted, moral defense of the institution of private property rights.Few doubt, in today’s world, that a society with a legal infrastructure that lacks this institution is in serious economic trouble. The failure to respect and legally protect the institution of private property — and its corollaries, such as freedom of contract and of setting the terms by the parties to trade — has produced economic weakness across the globe.Without a moral defense, however, the institution of private property, which is the source of a great many benefits to us all, will forever remain vulnerable to the critics, such as Karl Marx who said that “the right of man to property is the right to enjoy his possessions and dispose of the same arbitrarily, without regard for other men, independently from society, the right of selfishness.”This essay argues that contrary to such widespread sentiments and impressions, the institution of private property rights fully accords with a sensible conception of human morality. (shrink)

Rousseau’s founding critique of liberalism, the Discourse on the Origin of Inequality, takes the ambiguous form of a sweeping myth of civilization. Political theorists usually interpret the myth by reading it as a tale of passage from primordial nature to civil society, but what happens when we privilege another of the essay’s organizing devices, its symbolic depiction of the history of the species as the life of an individual? Interpreted through this metaphor, Rousseau’s myth becomes a charged tale of a (...) ‘life’ gone wrong, one that sheds interesting light on his critique of bourgeois society and selfhood. (shrink)

In our commonplace understanding of property, the “right to exclude” is seen as its central and defining feature: to own is to exclude. This paper examines the cost, to conceptual and normative clarity, of this understanding. First, I argue that the right not to be excluded is a crucial if overlooked element not simply of liberal understandings of ownership, but even of the right to exclude itself. Second, I argue that our neglect of the right not to be excluded severely (...) undermines the clarity and precision with which matters of ownership are debated within both contemporary politics and political philosophy. (shrink)

This article redescribes early modern European defenses of private property in terms of a theoretical project of seeking to establish the true or essential nature of property. Most of the scholarly...

Anti-commodification theorists condemn liberal political philosophers for not being able to justify restricting a market transaction on the basis of what is sold, but only on the basis of how it is sold. The anti-commodification theorist is correct that if this were all the liberal had to say in the face of noxious markets, it would be inadequate: even if everyone has equal bargaining power and no one is misled, there are some goods that should not go to the highest (...) bidder. In this paper, I respond to the anti-commodification critique of liberalism by arguing that the political liberal has the wherewithal to account not only for the conditions under which goods should not be sold, but also for what kinds of goods should not be for sale in a market economy. The political liberal can appeal to a principle of equal basic rights, and to one of sufficiency in basic needs and the social bases of self-respect, I argue, to account for what’s problematic about markets in civic goods, necessary goods, and physical goods including body parts and intimate services. (shrink)

‘Rights and Territories: A Reply to Nine, Miller, and Stilz’ defends the Lockean theory of states’ territorial rights against the critiques of Nine, Miller, and Stilz. In response to Nine’s concern that such a Lockean theory cannot justify the right of legitimate states to exclude aliens, it is argued that a consent-based theory like the Lockean one is flexible enough to justify a wide range of possible incidents of territorial rights – importantly including, though not necessarily including, the sort of (...) right to exclude aliens that is familiar from actual political practice. Miller’s criticisms are more wide-ranging. In response, the article argues that Lockean labor-based property rights are both stronger and more enduring than Miller suggests and that nationalism’s resources for dealing with concerns about rights-supersession and trapped minorities are importantly overstated by Miller. Against Stilz’s Kantian, ‘presentist’ account of states’ authority over persons and territories, it is argued that the rectification of past wrongs remains morally crucial even in the context of otherwise-just societies and that Stilz’s Kantian/rawlsian position unconvincingly privileges the rights to autonomy of territorially concentrated groups over those of dissenting individuals or wrongfully dispersed groups. (shrink)

This article is a review of Erik Olin Wright’s 2010 book Envisioning Real Utopias. The review focuses on certain topics such as his understanding of ‘capitalism,’ his conception of worker cooperatives, and the general issues surrounding markets, the Left, and Marxism.

In a recent essay in this journal, Tom O’Shea defends socialist republicanism, marrying the value of freedom as nondomination to public ownership of the means of production. In this reply, I argue that the efficiency costs that often attach to public ownership may undercut the ability of the socialist republic to combat domination by public agents. I provide two reasons in support of this claim. First, the economic gains provided by efficiency can insulate individuals from the discretionary power of other (...) agents. Put briefly, the more wealth you have, the less the discretionary power threatens your basic interests. Second, the efficiency costs of public ownership also make it more difficult to hold accountable the managers of economic organizations. This shortcoming of O’Shea’s argument reveals a point hitherto neglected in the republican literature—caring about nondomination implies caring about efficiency. (shrink)

It is morally impossible, Locke argued, for individuals to consensually establish absolute rule over themselves. That would be to transfer to rulers a power that is not ours, but God’s alone: owner...

This essay examines Étienne Balibar's readings of Jacques Derrida and deconstruction. The text is framed as a review of two books by Balibar: 'Equaliberty' and 'Violence and Civility'. After describing the context of those readings, I propose a broader reflection on the ambiguous relationship between 'post-Marxism' and 'deconstruction', focusing on concepts such as 'violence', 'cruelty', 'sovereignty' and 'property'. I also raise methodological questions related to the 'use' of deconstructive notions in political theory debates.

Property and Practical Reason makes a moral argument for common law property institutions and norms, and challenges the prevailing dichotomy between individual rights and state interests and its assumption that individual preferences and the good of communities must be in conflict. One can understand competing intuitions about private property rights by considering how private property enables owners and their collaborators to exercise practical reason consistent with the requirements of reason, and thereby to become practically reasonable agents of deliberation and choice (...) who promote various aspects of the common good. The plural and mediated domains of property ownership, though imperfect, have moral benefits for all members of the community. They enable communities and institutions of private ordering to pursue plural and incommensurable good ends while specifying the boundaries of property rights consistent with basic moral requirements. (shrink)

Scant attention has been paid to the notion of property in Hannah Arendt’s thought, and this paper aims to address this gap. For Arendt, property is the realm of privacy, located in the house. She argues that the modern age represented its loss with the expropriation of the peasant classes after the Reformation. As a result, wealth started to be accumulated and became productive through the labor of the new propertyless classes. This new way of dealing with property needed a (...) new notion of property for the laborers. Locke’s understanding gave the laborers the hope of being property-owners through their labor and simultaneously justified the unending accumulation of money; nevertheless, property in its true meaning was never recovered. Arendt believes that recovering property under conditions of equality is an essential consideration, and this egalitarian vision of property only can be achieved if law protects prop- erty as well as set limits on the accumulation of wealth. (shrink)

The present paper investigates the question of whether right-libertarians must accept easements by necessity. Since easements by necessity limit the property rights of the owner of the servient tenement, they apparently conflict with the libertarian homestead principle, according to which the person who first mixes his labor with the unowned land acquires absolute ownership thereof. As we demonstrate in the paper, however, the homestead principle understood in such an absolutist way generates contradictions within the set of rights distributed on its (...) basis. In order to avoid such contradictions, easements by necessity must be incorporated into the libertarian theory of property rights and the homestead principle must be truncated accordingly. (shrink)

Property is one of the most important institutions of modern societies. That certain things can be owned, and thereby controlled by individuals or corporations or governments, forms a set of background understandings and expectations against which we plan our projects and make many of our choices. That property institutions are products of social design means we need to become clear about the roles we think they should play and the features they must have. Moreover, that the use-privileges and powers of (...) control attaching to one person's property rights will affect both what others are free to do and also the distribution of social wealth means that property institutions require moral justification. (shrink)

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)

John Searle, in several articles and books, has contended that institutions incorporating status functions with deontic powers are created by collective acceptance. I argue that collective acceptance can create new status functions with deontic powers only if other status functions with deontic powers already exist, so that collective acceptance can create new institutions only if other institutions are presupposed. So, the claim that institutions depend upon collective acceptance involves a vicious infinite regress. I provide an example to show how an (...) institution of slavery could be created by individual acceptances plus mutual belief about those acceptances. I consider whether an institution could be created by individual acceptances without mutual belief about those acceptances; but my conclusion is largely negative. I contend that the emergence of a new institution presupposes an existing institutional context and I explain how infinite regress can be avoided. (shrink)

In a few years around 1850, three little known Belgian writers put forward strikingly similar proposals on property regimes. Their prescriptions followed from a core belief that just property regimes should respect the natural right entitlement of each person to some share of material resources. Insofar as an unregulated market economy could not meet that criterion, the state should intervene to secure it. These proposals had little impact at the time, either intellectually or politically, and fell into obscurity. Nevertheless, they (...) can be seen as a contribution to a distinctively Belgian school of 'liberal socialism', which sought to develop an intermediate position between the extremes of liberalism and socialism. In this respect, the proposals strikingly anticipated present-day controversies over stakeholding, even if much of that history was unknown to current advocates of the idea until after they had put forward their own proposals. (shrink)

In his lectures in the 1870s, T. H. Green argued for an important connection between ethics and politics - namely, that the state has the moral function of promoting and protecting all citizens’ opportunities of developing their moral character. How this works out in a concrete case is best seen by considering Green’s view of how this perspective dictates to society’s design of its property institution. This paper analyzes Green’s theory of property so as to bring out and explore his (...) general thesis about the state’s moral role; and deals with the critics’ claim that a property institution constructed along the lines Green advocated would actually deny property to some and thereby defeat the moral purpose of having a property institution in the first place. (shrink)

Self-ownership is a central concept not only in Anglo-American liberal/libertarian discourse but also in Marxism. This article investigates what it means to say that a person has fundamental entitlement to full property in himself. It looks at possible moments when pre-modern concepts of the self became modern ones, examining Locke’s Second Treatise and his Essay Concerning Human Understanding. The aim is to focus on continuities and discontinuities in the transition from pre-modern to modern concepts and practices of identity and agency (...) and the role that attitudes to property played within this transition. It also seeks to alert historians to the pitfalls of accepting contemporary conceptions of moral and civic agency found in normative political theory when they study pre-modern contexts and the people who lived their lives within them. It also attempts to expose certain modern limits on our understanding of society and people’s obligations to one another by rejecting the laws of the oikos as currently applied to the political domain. (shrink)