Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T04:18:13.406Z Has data issue: false hasContentIssue false
  • English
  • Français

Misled by ‘Property’

Published online by Cambridge University Press:  20 July 2015

J.E. Penner
Get access

Extract

It is not untypical for arguments about the justice of taxation to be framed in the rhetoric of property, for example by equating taxation with the taking of property by the state, a form of expropriation. An important recent example is found in Murphy and Nagel’s book, The Myth of Ownership: Taxes and Justice. In this paper the author argues that the equation of taxation with expropriation is conceptually awry, and that, properly understood, justifications for property rights bear only tangentially on the justice of taxation. The author elaborates this view by discussing Murphy and Nagel’s general strategy when they attempt to justify taxation in the face of libertarian ‘pro-property’ arguments, in the particular case of the ‘saver’s argument’, i.e., the argument that taxation on the income from investments amounts to an unfair burden on savers.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 18 , Issue 1 , January 2005 , pp. 75 - 93
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Thanks to Cecile Fabre, Nicola Lacey, Andrei Marmor, Ed McCaffery, Thomas Merrill, Liam Murphy, Jeremy Waldron, and Leif Weiner for their very valuable comments on earlier drafts of this paper. To the extent that it retains the egregious failings to which I am prone, they are absolved of all complicity.

1. Penner, J.E., The Idea of Property in Law (Oxford: Oxford University Press, 1997) [hereinafter Idea].Google Scholar

2. Ibid.

3. Ibid at 25-31.

4. The treatment of the relationship between personality and property has a long and somewhat vexed history. Hegel, pre-eminently, regarded the instantiation of property rights as a foundational moment in the realization of ‘personality’ in the world. See Hegel, G.W.F., The Philosophy of Right, trans. Knox, T.M. (Oxford: Oxford University Press, 1942) at 37–64 Google Scholar and Idea, supra note 1 at ch. 8. Radin, Margaret theorises a relationship between personality and property in ‘Property and Personhood’ (1982) 34 Stan. L. Rev. 957 CrossRefGoogle Scholar; the theory in Idea, supra note 1 summarized here is completely different.

5. It should also be obvious from the preceding why the notion of ‘self-ownership’ is at best dubious, at worst incoherent. See further Idea, supra note 1 at ch. 10; Ryan, Alan, ‘Self-Ownership, Autonomy, and Property Rights’ (1994) 11 Soc. Phil. & Pol’y 241 CrossRefGoogle Scholar.

6. Harris provides a noticeable exception; see Harris, J.W., Property and Justice (Oxford: Clarendon Press, 1996) at 166–68 Google Scholar.

7. This point may seem peremptory, given what I have said about the way in which what counts as property rights significantly marks the nature of a society; in light of that, should it not follow that the distribution of property rights should raise quite different concerns than the distribution of other rights? Well, in one sense, yes. Certainly the distribution of the right to vote in a general election or the right to freedom of speech will give rise to concerns different from the distribution of property rights (indeed the ‘distribution’ of rights to vote seems to invoke a different notion of distribution than the ‘distribution’ of property rights). But in another, more pertinent sense, no. It must always be remembered that much of the way our lives, and the lives of important institutions like companies or universities go, turns not on what property rights are held, but by what services are received, typically gratuitously or by contract. From this perspective, property rights form but part of the private economy of entitlements, and almost all legal systems apply the gift and contractual modes of distribution to property and service entitlements in pretty much the same way. The justification of particular distributional modes, i.e., contract, gift, and command, as they operate to distribute property rights, appears to be extremely alike any justification which would apply to those modes in so far as they distribute services as well. It should not be assumed at the outset that a particular distributional mode, such as contract is somehow essentially different when it is employed to distribute property rights rather than other kinds of rights. The first issue to discover is what reasons of justice are raised by the operation of a particular distributional mode whatever it distributes; clearly there are such issues in the case of contract, e.g., the bounds and nature of consent as a justification for the creation or transfer of rights.

8. Another issue that must be addressed is whether practical reason counsels a preference of property rights, more or less open-ended rights to dispose of particular things as wholes, over less extensive proprietary rights, which are defined rights to use things in particular ways, as the general exclusionary norm of the system. This is an extremely important issue, which I cannot deal with here.

9. Nozick, Robert, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974) at 167–74 Google Scholar. The equation of expropriation with taxation is actually quite sketchy, as under the rubric of ‘Redistribution and Property Rights’ Nozick initially treats taxation as amounting to forced labour, or the appropriation of someone’s labour after the fact, and one’s labour is not in the absence of a Lockean argument one’s property. But it is clear that in the next section, ‘Locke’s Theory of Acquisition’ at pages 174-82 that Nozick accepts some sort of Lockean characterisation of property rights, and so it would seem that Nozick would treat the appropriation of forced labour as equivalent to the expropriation of property; hence the equation of taxation with expropriation is made, if a little indirectly.

10. Massively over-broadly construed, in fact.

11. Though see text to infra note 17 for the discussion of legal theories which, while accepting the necessity of the distinction, hold that taxation and expropriation are, at some fundamental level, the same.

12. But see further text to infra note 19.

13. In Commonwealth-American property jurisprudence, ‘Blackacre’ is the name traditionally given to a hypothetical parcel of land.

14. Though of course what rights constitute property for the purpose of compensating for expropriation is much disputed, as is the appropriate measure of compensation.

15. See, e.g., Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954)Google Scholar; Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 304 N.W.2d 455 [1981]Google Scholar.

16. The Queen’s special tax status, which has arisen for pretty evident reasons, is such a case.

17. Admirably surveyed in Kades, Eric, ‘Drawing the Line Between Taxes and Takings: The Continuous Burdens Principle, and its Broader Applications’ (2002) 97 Nw. U. L. Rev. 189.Google Scholar

18. Quoted in ibid. at 189.

19. See Kades, supra note 17 at 200-02.

20. See Penner, , ‘Voluntary Obligations and the Scope of the Law of Contract’ (1996) 2 Legal Theory 325 CrossRefGoogle Scholar; Idea, supra note 1, ch. 7.

21. For what to my mind is the best treatment, see Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at Part IGoogle Scholar, ‘The Bounds of Authority’.

22. It is also worth noticing the difference between both expropriation and taxation and confiscation. Confiscation is neither a claim to a particular item of property someone holds, nor a claim for value, but a claim to certain classes of property which someone holds, such as proceeds of criminal activities, to prevent criminal enrichment or unsafe or hazardous goods, for reasons of public safety, or of alcohol, to enforce prohibition, up to all of the goods someone holds if the goal is to severely punish (escheat for felony) or to destroy an institution (the dissolution of the monasteries by Henry VIII).

23. Nozick, supra note 9 at 169, notes omitted, italics mine.

24. Leif Wenar objects to this way with Nozick. He says, ‘the strongest construal of Nozick’s argument is not that taxation and forced labor are conceptually on a par, but that they are morally on a par. Lots of things can be morally on a par that are conceptually quite different (e.g., a lie and a broken promise). Moreover, we can show that there needn’t be all the difference in the world, morally, between a demand for a specific asset and a demand for a certain amount of value. Say Joe has a gold bar worth 50,000 pounds. Jane puts a gun to Joe’s head and says either “Give me your gold bar” or “Give me 50,000 pounds.” One demand is a demand for an object the other is a demand for value, but the two demands are morally on a par. So if Nozick is wrong, it likely isn’t at the conceptual level.’ I take Wenar’s point that two conceptually distinct ‘transactions’ may be on a par, morally speaking, in certain respects. Taxation and expropriation are both demands which the state will enforce coercively, if need be, so the justice of the state’s coercion will arise in both cases. But as I have laboured in the text above to show, the justice of taxation and the justice of expropriation give rise to quite different concerns, such that they are not on a par, morally speaking, in many relevant respects. No one denies that all unjust acts are morally on a par in one respect i.e., that they are unjust. But it seems to me that Nozick is trying to claim by a more or less conceptual equation of taxation with forced labour/expropriation that the moral equivalence of the two follows, on the lines that if you find forced labour morally wrong, then you must find that taxation is equally morally wrong, and that is precisely where I think the argument fails.

25. A lot of mischief has been done to our understanding of all of this by the notion of ‘taxation in kind’. I, for one, am happy to say that the feudal tenurial system under which goods were passed upward to and services performed for the immediate superior lord on the feudal ladder was a system of taxation, taxation in kind. But it didn’t amount to expropriation because it was not concerned to continuously carve chunks out of the immediate inferior lord’s estate—rather, it was an incident of feudal property holding (when it finally turned into a system of property at all (Idea, supra note 1 at 212-13)) that contributions of value need continuously be made to one’s superior to maintain one’s title. But in the absence of the general use of money, these value claims could not be made abstractly, but only in terms of actual goods or services. That it was a system of property taxation, a system of demands for value, is established by the fact that as soon as money came into more common use, tenurial services of all kinds were commuted into money payments, and furthermore by the fact that the decline in the feudal system arose in part by changes in the political climate which led to the belief that the revenue of the crown (the chief beneficiary of the feudal system of taxation) should principally owe to taxing statutes passed by Parliament not to ancient feudal rights. The lesson is that although taxation in kind and expropriation concern specifics in the sense that the former required the transmission of particular kinds of valuable things (goods or services), the rationale behind taxation in kind is not principally to have the very things taxed, but to acquire value; taxation in kind is implemented when, unfortunately, only specific goods are available, abstract transfers of value via money being difficult if not impossible.

26. To say that I ‘transfer’ my labour to someone is a barbarism. I don’t even ‘transfer’ the value of my labour to someone. What I do is confer a benefit on someone by acting in some way to their benefit.

27. On taxation in kind, see supra note 24.

28. Murphy, Liam & Nagel, Thomas, The Myth of Ownership: Justice and Taxes (New York: Oxford University Press, 2002)CrossRefGoogle Scholar [hereinafter Myth].

29. On a ‘natural’ right to property, see Marmor, Andrei, ‘On the Right to Private Property and Entitlement to One’s Income’Google Scholar in this volume.

30. Myth, supra note 28 at 8.

31. Myth, supra note 28 at 16-17.

32. Myth, supra note 28 at 38-39.

33. Nozick, supra note 9 at 175.

34. It seems unlikely in the extreme that the social conditions necessary for functioning markets, property rights, and much else, can be notionally ascribed to the institution of ‘government’, whatever that is, much less the institution of a state, as a glance at the literature on ‘social capital’ will instruct. See Putnam, Robert, Bowling Alone (New York: Simon and Schuster, 2000) at 18–24 Google Scholar for an introductory overview. As to the war of all against all, state of nature models, for what they are worth, are heuristics concerning the nature, in particular the relative priority, of human rights. If ever they were intended or taken to be empirically accurate statements of human history or anthropology, that is a monumental mistake, for such models are unfounded history and worse anthropology. I am not sure in which way Murphy and Nagel take Hobbes’s state of nature, but the parenthetical remark about how many of us would be around in the absence of government suggests to me they may be taking the model as something empirically valid, at least in part. 35. It has been suggested to me by Ed McCaffery that this is an unfair or mistaken reading of Nagel and Murphy’s central thesis, arguing that the central normative thrust of the book is a utilitarian one; thus, the somewhat sharp distinction I draw between moral reasons and merely prudential ones does not really bite. It is not clear to me that Nagel and Murphy peg their arguments on the truth of utilitarianism, but if they do, then McCaffery’s claim is, of course, correct. But utilitarianism is wrong, or at least let us say that its truth is very far from being shown, and so I think this particular criticism deserves to be taken seriously, at least provisionally. Jeremy Waldron advises me that Murphy and Nagel are only challenging the ‘presumption’ of validity for property rights in the face of taxation; fair enough, say I, but it seems to me that this presumption can more easily and appropriately be challenged as I explain in the text, below. The problem with the Hobbesian argument is that it is exorbitantly expensive in terms of what it seems to commit its proponent to. It is the equivalent of a nuclear weapon, destroying the landscape to eradicate one topical feature, here the validity of property rights. As I state in the text below, all Murphy and Nagel really need to do is point out that there are more values than that protected by the right of property, and further, that in the same way as property norms facilitate exchange, contract, and so on, property norms facilitate the meeting of our obligations to others, including our obligations to the state (assuming we have such obligations) by facilitating the payment of taxes.

36. Hart, H.L.A., ‘Kelsen Visited’ (1963) 10 UCLA L. Rev. 709 Google Scholar.

37. Myth, supra note 28 at 102. For a thorough explanation and consideration of the saver’s argument see McCaffery, Ed, ‘A New Understanding of Tax’ Mich. L. Rev. Google Scholar [forthcoming].

38. Myth, supra note 28 at 102-09.