The Contested Commitments of Property (original) (raw)

Property, Propriety and Democracy

The redefinition of rights of equality and liberty by radical and deliberative democrats during the last decades of the 20th century resulted in the denial that a consideration of property is integral to political philosophy. Theorizing property as intrinsically political demands a return to Marx but on terms he may not have recognized. I outline a politics of property in this paper contending that there can be no universal justification for any regime of property. Property is by definition the institution of a wrong. The articulation of something as property establishes a border, determining what can be owned, how far ownership extends, where it is limited, as well as terms of use and terms of abuse. It establishes a set of property relations, and defines a vocabulary of the proper. Here sovereign state power is enlisted to enforce relations of property beneficial to some, but not all. A challenge to any political regime must of necessity put in to question both the forms of proper behaviour, and the regime of property. These are intrinsically related to each other. I conclude by arguing that democracy is always improper. Property, in all of its forms entails enclosure. Enclosure requires the drawing and the maintenance of boundaries of exclusion and inclusion. The sovereign determination of the proper, as well as of the exception to the proper defines trespass. Trespass is a form of democratic enactment when, and if, it destabilises enclosure.

The New Politics of Property Rights

Critical Review, 2004

Philosophical defenses of property regimes can be classified as supporting either a conservative politics of property rights—the political protection of existing property titles—or a radical politics of direct political intervention to redistribute property titles. Traditionally, historical considerations were used to legitimize conservative property‐rights politics, while consequentialist arguments led to radical politics. Recently, however, the philosophical legitimations have changed places. Conservatives now point to the beneficial economic consequences of something like the current private‐property regime, while radicals justify political redistribution as restitution for historical misappropriations. This shift can be explained by such factors as the failure of state‐directed redistributions of property during the twentieth century to benefit the poor. But there are limitations to the usefulness of historical arguments for radicals, and of consequentialist arguments for conservatives: namely, the undeserving poor and the idle rich, respectively.

Property (The Encyclopedia of Political Thought, Wiley 2015)

Wiley-Blackwell Encyclopedia of Political Thought (ed. Michael Gibbons), 2014

This article provides a concise introduction and brief guide to relevant sources on the concept of property in the history of political thought. The article traces continuities and discontinuities in political thinking on property since antiquity, encompassing classical, Christian, early modern, Enlightenment, Marxist, and anarchist thought. Special emphasis is given to the debates on the changing conceptions and normative valences of property at the interface between classical-Christian moral economies and modern-secular commercial economies.

Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights

SSRN Electronic Journal, 2000

Property is a powerful concept. It features prominently in academic and public discourse. But it is also a source of ongoing confusion. While some of this disarray may be attributed to the success of "disintegrative" normative agendas, much of it is the result of a methodological and conceptual disconnect both within and among different fields of study. Aimed at narrowing this gap, the paper analyzes the transformation of property from a moral and social concept into a legal construct. It seeks not to develop a historical or intellectual account of such an evolution, but to analyze the institutional and structural features of property once it is incorporated into the legal realm. The paper identifies the unique jurisprudential ingredients of a system of rules by which society allocates, governs, and enforces rights and duties among persons in relation to resources. It examines the work of decisionmaking institutions entrusted with the task of designing property norms over time. Clarifying the institutional and structural attributes of property does not require, however, adhering to a uniform body of norms or to a single set of underlying values. Illuminating the construction of property allows rather for a better informed debate about the socially-desirable content of property rights.

Contemporary Legal Conceptions of Property and Their Implications for Democracy

The Journal of Philosophy, 1980

M /[ ODERN legal conceptions of property have been associated with theories of democracy in terms of the relation between property and freedom. Thus in liberal democratic theory, private property is seen as a condition for the freedom of individuals and so as a basis for political democracy; alternatively, in socialist theories of democracy, social ownership of the means of production is seen as a condition for freedom from class domination and so as a basis for democratic control of society. However, on the one hand, the liberal theory of property has tended to permit private property owners to exercise power over those who are propertyless, and these inequalities of power have undermined political democracy in practice. On the other hand, the socialist theory of property has been interpreted in ways that have led to bureaucratic and state domination of social life and thus has failed to produce democratic societies. The failures of these systems of property to provide the conditions for freedom and democracy are not simply aberrations of practice, but are also based on theoretical misconceptions concerning the nature of property and its relation to human freedom. In this paper I will give an analysis of the relation between property and freedom and will propose an alternative conception of property understood as a condition for democracy in social life. The normative basis for my analysis will be the concept of equal positive freedom, or the equal right of individuals to self-realization. * To be presented in an APA symposium on Political Philosophy, December 30, 1980. Allen Buchanan will comment; see this JOURNAL, this issue, 729-731. Research for this paper was supported by a Rockefeller Foundation Humanities Fellowship. I I use the term 'personal possessions' interchangeably with the terms 'personal property' and 'individual property'. The term 'possession' has the advantage of being colloquial. However, by this usage I do not intend to suggest a traditional distinction between possession as factual and property as legal right. Rather, I use both terms-'possession' and 'property'-to connote legal rights.

Ownership and Obligations: The Human Flourishing Theory of Property

2013

The thesis of this brief paper is straightforward, although not uncontroversial: The moral foundation of property, both as a concept and as an institution, is human flourishing. In the remainder of my remarks I will explain what I mean by human flourishing, as I use the term, and I will distinguish human flourishing from welfare as that term is commonly used today by economists and legal analysts. I will then briefly illustrate the approach through an example. Private property ordinarily triggers notions of individual rights, not social obligations. After all, the core function of private property, at least according to conventional lore, is to insulate individuals from the demands of society both in its organised political form and its nonpolitical collective form. Of course, the common law has long recognised limits on the exercise of property rights, limits that grow out of the needs of others in cases of conflicting land uses. The obvious example is the common law of nuisance, which courts developed using the ancient maxim sic utere tuo ut alienum non laedas ("use your land in such a way as not to injure the land of others") as their guiding principle. But such limits on property rights are considered the exception, not the rule, the periphery rather than the core. 2 The core image of property rights, in the minds of many people, is that the owner has a right to exclude others and owes no further obligation to them. 3 On this view trespass is the paradigmatic cause of action in the law of property. Hence if another intentionally commits trespass upon my land after I have refused permission to pass across it, the trespasser is properly liable for punitive damages even though only trivial damage was done to my property. 4 That image is highly misleading. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of rights, 5 is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions. For example, the common 1 A. Robert Noll Professor of Law, Cornell University. This paper was originally delivered as a lecture at the University of Hong Kong Faculty of Law. I am grateful to the Faculty for the invitation and especially to Professor Guanghua Yu for making the arrangements and for his hospitality. 2 This is essentially the thesis of Henry E. Smith, "Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law" (2009) 94 Cornell Law Review 959. Indeed Smith uses the very imagery of core and periphery.

Rights and property paradigms: challenging the dominant construct hegemony

Journal of Human Rights and the Environment, 2012

The interrelationship of (human) rights and property paradigms raises particularly profound questions when played out in respect of environmental claims. It is therefore no surprise that contributions to this edition invoke ontological and epistemological concerns fundamental to the unsettled interface between the mutable richness of living spatial and socio-cultural ecologies and the abrupt reductionisms so often imposed upon them by law. At the same time it speaks of the power and dominance of property paradigms that even the most critical analyses tend to seek reformulation of property's parameters rather than its abandonment.

The Origins, Nature, and Content of the Right to Property: Five Economic Solitudes

The thesis of this article is that the now extensive contemporary literature on the economics of property rights has generated more heat than light. Economists have invoked at least five distinct theories of ownership or property rights in their work. Unfortunately, authors frequently fail to acknowledge the existence of competing theories of property rights that stand as conceptual rivals to the theory that they, often implicitly, invoke. Nowhere is this problem more evident than in the literature on regulatory takings, a literature that has a justifiable reputation for its inconsistent conclusions. Other fields in which theories of property rights play an important role include intellectual property, the economics of contracts, competition analysis and policy, externalities, and the economics of information. This article compares and evaluates five competing theories of property rights that have been advanced and used by economists: classical liberalism, utilitarianism, legal positivism, pragmatism, and modern libertarianism. These theories present divergent accounts of the origin and the nature of ownership claims. They also conceptualize the evolution of ownership institutions as well as ownership patterns quite differently. There are also important differences in incentives that exist under institutional regimes based on each theory.