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Replacing Private Property: The Case for Stewardship

Published online by Cambridge University Press:  16 January 2009

William N. R. Lucy  and
Catherine Mitchell
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The notion of private property is endemically problematic and controversial. Although the notion has many defenders its critics have all the best lines: we know, of course, that the institution of private property was denounced as theft and attacked as the product of exploitation and class antagonism. More recently, the notion has been regarded as nothing more than a myth and, in a slight variation on Proudhon's refrain, dismissed as a form of fraud. As if this were not bad enough, it appears that even the thinkers of classical antiquity had severe reservations about the notion although, unusually, their worries were expressed without recourse to pithy rhetoric. Does the notion of private property have any conceptual or normative advantages? Ought we to abandon it altogether? In this essay we offer a negative answer to the first and an affirmative answer to the second question.

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The Cambridge Law Journal , Volume 55 , Issue 3 , November 1996 , pp. 566 - 600
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Copyright © Cambridge Law Journal and Contributors 1996

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References

1 By, respectively, Proudhon, P-J., What is Property? (Kelley, D. and Smith, B. (eds.), Cambridge 1994), p. 13Google Scholar and Marx, K. and Engels, F., The Communist Manifesto (Penguin 1967), p. 96.Google Scholar

2 See Christman, J., The Myth of Property (New York. 1994)Google Scholar and Gray, K., “Property in Thin Air” (1991) 50 C.L.J. 252.Google Scholar

3 The doubts are articulated in a discussion of whether or not private property is compatible with virtue. A breezy account is provided by Ryan's, A. essay in Ball, T., Farr, J. and Hanson, R. (eds.), Political Innovation and Conceptual Change (Cambridge 1989), particularly pp. 312–316.Google Scholar

4 Caldwell's, L.Google Scholar rhetoric though not his arguments suggest that he thinks this particular change could require considerable normative and conceptual revision: see his “Land and the Law: Problems in Legal Philosophy” (1986) University of Illinois L R. 319, p. 323.Google Scholar For the implications of such changes within political thought see Skinner, Q., “Language and Political Change” p. 11 and pp. 12–13Google Scholar in Ball, et al. , op. cit. n. 3 above.Google Scholar

5 On which see Bentham, J., An Introduction to the Principles of Morals and Legislation, Burns, J.H. and Hart, H.L.A. (eds.), (London 1970), p. 211, n. 12 (Ch. XVI, sect. 26).Google Scholar

6 This analysis of the concept of property belongs to Waldron, J., The Right to Private Property (Oxford 1988), hereinafter referred to in text and notes as “Waldron”, pp. 31–32, 35. Waldron offers useful but brief analyses of the various types of property regimes at pp. 40–42.Google Scholar

7 Waldron, , p. 38.Google Scholar

8 Waldron, , p. 38.Google Scholar

9 Waldron, , p. 39.Google Scholar

10 On the relativity and complexity of the notion of private property see generally, Hohfeld, W., Fundamental Legal Concepts (New Haven 1919), pp. 35–64Google Scholar; Becker, L., Property Rights (Boston 1977), pp. 11–15Google Scholar; Honoré, A.M., Making Law Bind (Oxford 1987), ch. 8Google Scholar; and Grey, T., “The Disintegration of Property” in Pennock, J. and Chapman, J. (eds.), NOMOS XXII: Property (New York 1980), pp. 69–85.Google Scholar

11 Honoré does not explicitly relate his “incidents” of ownership to private property, but this is arguably implicit from the language he uses: ownership is contrasted with “public administration” (ibid., at p. 161), and defined as “the greatest interest in a thing admitted by a mature legal system” (ibid.), He also stresses that he is concerned with “the liberal concept of full ownership” (ibid.), and his language is inconsistent with “more restricted notion[s] to which the same label may be attached in certain contexts” (ibid.).

12 “Limited” because we have in mind a conception less demanding than that articulated by Marx: see Marx, K. and Engels, F., The German Ideology (London 1974), pp. 39–72Google Scholar and Marx, K., Capital, Volume 1 (Penguin Books 1976), pp. 163–177Google Scholar. Those marxist scholars who believe in two distinct periods of thought in Marx—the early and the late—often deny that there is any single account of ideology or false consciousness to be found in the works just cited. That dispute cannot be tackled here.

13 Gray, , op. cit. n. 2 above, p. 305. He is, of course, exclusively concerned with land.Google Scholar

14 It is not fair to tar Gray, K., Elements of Land Law (London, 2nd ed., 1993)Google Scholar with this brush. Standard American and Canadian land law texts are usually more aware of the constraints upon private property: see Browder, O. et al. , Basic Property Law (Minnesota, 5th ed., 1989), chs. 1–2, 13–16Google Scholar; Cribbet, J. et al. , Property: Cases and Materials (New York, 6th ed., 1990), chs. 18–22;Google Scholar and Oosterhoff, A. and Reyner, W., Anger and Harisberger on Real Property (Ontario 1985) Vol. 2, chs. 36–137.Google Scholar

15 The language of principles, counterprinciples and deviationist doctrine is, of course, Unger's, R.: The Critical Legal Studies Movement (Harvard 1986) pp. 15–22, pp. 57–88.Google Scholar

16 (1986) 8 E.H.R.R. 123.Google Scholar

17 The great English constitutional statutes are reticent about property: see, for example, Magna Carta (Statute 25 Edw. 1, 1297) ch. 29. The takings provisions are the Fifth Amendment of the Constitution of the United States of America, section 1 of the Canadian Bill of Rights 1960 and section 51 (xxxi) of the Commonwealth of Australia Constitution Act 1900 (as amended).

18 Examples include Part V of the National Parks and Access to the Countryside Act 1949; Electricity Act 1957, s. 35(1); Town and Country Planning Act 1990, s. 57.

19 Examples are: (i) the law of nuisance and Rylands v. Fletcher (1868) LR. 3 H.L. 330Google Scholar (for a dated but nevertheless interesting account of the way in which the law of nuisance effects land use see McAuslan, P., Land, Law and Planning (London 1974), pp. 48–76)Google Scholar; that nuisance functions independently of statutory controls upon development is clear from, inter alia, Tale and Lyle Industries Ltd v. Greater London Council [1983] 2 A.C. 509Google Scholar and Wheeler v. J.J. Sounders Ltd [1996] Ch. 19); (ii)Google Scholar natural rights of support and rights to naturally flowing surface and underground water, on which see Dias, R. (ed.), Clerk and Lindsell on Torts (London, 16th edn., 1989), pp. 1390–1398Google Scholar; and (iii) the law of easements, treatment of which is contained in Gray, , op. cit. n. 14 above, ch. 21.Google Scholar

20 At p. 36 of his introduction to Renner, K., The Institutions of Private Law and Their Social Functions (London 1949)Google Scholar. For the current statistics on the number of mortgage purchases and an excellent analysis of the law see Gray, , op. cit. n. 14 above, ch. 20.Google Scholar

21 We ignore utilitarian arguments on the grounds that they are insufficiently determinate, by which we mean that these arguments are as capable of justifying private property as of justifying its opposite. Of course, this claim requires support that cannot be supplied here. For a different and more precise account of the failures of utilitarian justifications of private property see Christman, J., op. cit. n. 2 above, ch. 6.Google Scholar

22 The argument is found in Locke, J., Two Treatises on Government (Cambridge 1988), edited with an introduction and notes by Laslett, P..CrossRefGoogle Scholar In notes and the text this will be referred to as “L:TT” with the relevant section number. A more thorough discussion of Locke is found in Lucy, W. and Barker, F., “Justifying Property and Justifying Access” (1993) 6 Canadian Journal of Law and Jurisprudence 287, pp. 296–304.CrossRefGoogle Scholar

23 Thorough analyses of all the problems in Locke's argument are found in Waldron, ch. 6 and Geras, N., “The Fruits of Labour—Private Property and Moral Equality” in Moran, M. and Wright, M. (eds.), The Market and The State (London 1991), pp. 59–77 (hereinafter referred to as “Geras” with relevant page numbers).CrossRefGoogle Scholar

24 L:TT, II. 27.Google Scholar

25 Ibid.

26 The identification argument belongs to Olivecrona, K., “Locke's Theory of Appropriation” (1974) 24 Philosophical Quarterly 220, pp. 224–226, 229CrossRefGoogle Scholar; versions of the desert argument are offered by, inter alios, Becker, , op. cit. n. 10 above, pp. 47, 48–56Google Scholar and Munzer, S., A Theory of Property (Cambridge 1990), ch. 10CrossRefGoogle Scholar; the energy mixing argument is made by Steiner, H. in reply to Waldron: see Waldron, pp. 183, 187–188Google Scholar; Steiner, , book review (1992) 101 Ethics 201, p. 203Google Scholar and An Essay on Rights (Oxford 1994), pp. 231–236.Google Scholar

27 The problems with the identification argument are well exposed by Waldron, , pp. 196–197Google Scholar and Geras, pp. 74–75Google Scholar; they are equally acute on t he desert argument—Waldron, , pp. 204–206, Geras, , p. 75Google Scholar–and the energy mixing argument: Waldron, , pp. 183, 187–189 and Geras, pp. 68–70.Google Scholar

28 See L:TT, II. 27–28, 30–32, 35Google Scholar; Waldron, , pp. 158–159.Google Scholar

29 Geras, , p. 69 (emphasis in original).Google Scholar

30 Ibid.

31 L:TT, II. 42 and generally II. 40–43Google Scholar; Waldron, , pp. 191–194.Google Scholar

32 Geras, pp. 72–73; a similar argument is also offered by R. Nozick, Anarchy, Stale and Utopia (Oxford 1974) p. 174 and by Olivecrona, op. cit. n. 26 above, pp. 227–228. Other problems with the Lockean response to the second question are noted by Nozick, ibid, at p. 175 and Waldron, , p. 190.Google Scholar

33 Waldron, , p. 351.Google Scholar

34 References in the text and notes to Hegel, G.W.F., Philosophy of Right (Oxford 1952)CrossRefGoogle Scholar take the abbreviated form “H:PR” with section rather than page numbers. Where “R” and “A” appear after section numbers the former refers to Hegel's additional remarks to the original text and the latter refers to the original translator's summary of sections. Anyone familiar with Waldron, ch. 10 will recognise our indebtedness to his treatment of Hegel. About control, Ryan, A., Property and Political Theory (Oxford 1984), p. 122Google Scholar, is right when he says “Hegel identified taking in order to control as staking the initial claim to ownership” (emphasis in original).

35 There are some doubts as to whether or not Hegel's argument should be considered normative in the sense Anglo-American philosophers give to that word: for discussion see Waldron, , pp. 344–347.Google Scholar

36 Of course, this claim need not be read as a denial of anything Hegel says about the importance of embodiment: see H:PR, S47 and S48.

37 H:PR, S47, footnote omitted.

38 H:PR, 52 and 57R and Waldron, , p. 362.Google Scholar

39 Waldron, , p. 356.Google Scholar

40 H:PR, S46.

41 Waldron, p. 370.

42 Ryan, A. puts it concisely: “The world literally takes on human purposes”, p. 185Google Scholar of his “Hegel on work, ownership and citizenship” in The Slate and Civil Society, Pelczynski, Z.A. (ed.) (Cambridge 1984)Google Scholar. See also Ryan, , op. cit. n. 34 above, p. 122.Google Scholar

43 Unless, that is, the Emperor Caligula is one's role model. He, remember, asked for the moon: see the eponymous play by A. Camus.

44 A fuller account of the argument is found in Lucy, and Barker, , op. cit. n. 22 above, pp. 309–317.Google Scholar

45 Gray, , op. cit. n. 2 above, p. 268.Google Scholar

46 Ibid., pp. 280–281.

47 Waldron, 41; emphasis in original.Google Scholar

48 Hardin, G., “The Tragedy of the Commons', (1968) 162 Science 1243–1248.Google Scholar

49 The account here follows Demsetz, H., Ownership, Control and the Firm (Oxford 1988), ch. 7, especially pp. 110–112.Google Scholar

50 Hardin, , op. cit. n. 48 above, p. 1244Google Scholar. The problems engendered by the tragedy of the commons, such as asset grabbing, uncontrolled pollution and free-riding are well documented in Ellickson, R.C., “Property in Land” (1993) 102 Yale L.J. 1315, p. 1326.CrossRefGoogle Scholar

51 Gray provides an excellent example of such a resource, namely, language: op. cit. n. 2 above, p. 284ff.Google Scholar

52 Hence it is n o exaggeration on Ellickson's part to say that the question of entitlement to land use is a central issue of social organisation: op. cit. n. 50 above, p. 1317.Google Scholar

53 Hardin, , op. cit. n. 48 above, p. 1244.Google Scholar

54 On this point see generally, Demsetz, , op. cit. n. 49 above, pp. 111–112Google Scholar; Ellickson, , op. cit. n. 50 above, p. 1327.Google Scholar

55 See Passmore, J., Man's Responsibility for Nature (London, 2nd ed., 1980), ch. 2.Google Scholar Passmore dates the stewardship tradition back to the third century AD with the post-Platonic philosophers of the Roman Empire. See also Attfield, R., The Ethics of Environmental Concern (Athens, 2nd ed., 1991), ch. 3Google Scholar. The notion of stewardship seems to be in play in Locke, being used to characterise the relationship between God and our persons and bodies: see L:TT I. 39Google Scholar and II.6. R. Ashcraft thinks—although he provides little argument—that the notion of stewardship underlies everything Locke says about property and not just his thoughts about our relationship with our persons and bodies: see his Revolutionary Politics and Locke's Two Treatises of Government (New Jersey 1986), p. 263 n. 138.Google Scholar

56 Genesis, 1: 28.

57 Passmore, op. cit. n. 55 above, p. 28.Google Scholar

58 Caldwell, , op. cit. n. 4 above, p. 329Google Scholar. For a sketch of a different land holding ethos see Leopold, A., A Sand County Almanac (New York 1970), p. 240ff.Google Scholar

59 See Gray, , op. cit. n. 14 above, ch. 2Google Scholar for an introductory account of the notion of the trust. In his essay “Equitable Property” (1994) 47(2) Current Legal Problems 157CrossRefGoogle Scholar, Gray, also provides (at pp. 188–206)Google Scholar an admirable, cross-jurisdictional survey of the legal and philosophical development of stewardship and its trust/fiduciary basis.

60 V.J. Yannacone, for example, writes that the “fundamental question facing all the 'owners' of natural resources or real property and those who would develop real property and exploit natural resources during the remainder of this century is whether the nominal title to property confers upon its holder a right to unrestricted possession and unrestrained use of the property or merely the right to use it for what may be deemed purposes socially acceptable at the time of such use”: “Property and Stewardship—Private Property Plus Public Interest Equals Social Property” (1978) 23 South Dakota LR. 71, p. 71.Google Scholar

61 Karp, J.P., “A Private Property Duty of Stewardship: Changing our Land Ethic” (1993) 23 Environmental Law 735.Google Scholar

62 Ibid., p. 748.

63 Caldwell, , op. cit. n. 4 above, p. 323.Google Scholar

64 Ibid., p. 325.

65 Ibid., p. 330 emphasis added.

66 Karp, , op. cit. n. 61 above, p. 755.Google Scholar

67 For example, Yannacone asserts that “the prime agricultural lands and arable soils of this [the American] nation have become so important to the welfare of the people of this generation and those generations yet unborn, that they impose the general obligation of a trustee for the public benefit upon the nominal owner: op. cit. n. 60, p. 74.Google Scholar Similarly, Caldwell maintains that ”a new conceptual basis for land use law and policy is required to reconcile the legitimate rights of the user of land with the interest of society in maintaining a high quality environment“: “Rights of Ownership or Rights of Use? The Need For a New Conceptual Basis for Land Use Policy” (1974) 15 William and Mary L.R. 759, p. 759Google Scholar. Karp asserts that “there is no justifiable reason for protecting the power of a landowner to waste and to destroy, when that conduct may harm the community's interest”: op. cit. n. 61 above, p. 750.Google Scholar

68 This categorisation of accounts of the public interest follows Held, V., The Public Interest and Individual Interests (New York 1970), p. 42ff.Google Scholar

69 Ibid., ch. 3.

70 This is Brian Barry's favoured formulation: Political Argument (London 1965), p. 176Google Scholar. Similarly, A. Reeve and Ware, A. assert that “talk of interests is redundant without an instrumental connection between what is wanted and something else”: “Interests in Political Theory” (1983) 13 British Journal of Political Science 379, p. 381.Google Scholar

71 For Barry, such concerns belong in the realm of principles rather than interests: ibid, ch. X.

72 Held, , op. cit. n. 68 above, pp. 22–23.Google Scholar

73 R. Dworkin makes a similar kind of distinction in his criticisms of utilitarianism. He distinguishes between personal preferences for a person's own enjoyment of goods and opportunities and external preferences for the assignment of goods and opportunities to others. Dworkin believes that if external preferences are included in the calculation of utility, then that calculation is corrupted, along with any claims to egalitarianism: Taking Rights Seriously (London 1977), p. 234ff.Google Scholar

74 Yannacone makes exactly this kind of claim, op. cit. n. 60 above, p. 74.Google Scholar

75 Bodenheimer, E., “Prolegomena to a Theory of the Public Interest” in Freidrich, C.J. (ed.), NOMOSV: The Public Interest (New York 1962), p. 208.Google Scholar

76 Held, , op. cit. n. 68 above, ch. 4.Google Scholar

77 Thus Barry asks, “Why are some logically possible proposals never advocated by anyone at all? Why, for example, is nobody in the United States in favour of having the Strategic Air Command take off and drop all its bombs on the USA? Obviously, because nobody at all believes this would be in his interests”: op. cit. n. 70 above, p. 195.Google Scholar

78 “The concept of public interest functions to justify the demand that members of the society regard themselves as obligated (not merely forced) to obey particular commands and to conform to particular policies which they regard as contrary to their personal interests”: Flathman, R., The Public Interest (New York 1966), p. 38, emphasis in original.Google Scholar

79 The idea of the veil of ignorance belongs, of course, to Rawls, J.: A Theory of Justice (Oxford 1972), pp. 136–142.Google Scholar

80 Benton, T., “Realism, Power and Objective Interests”, in Graham, K. (ed.), Contemporary Political Philosophy: Radical Studies (Cambridge 1982), p. 26.Google Scholar

81 Lukes, S., Power: A Radical View (London 1974), p. 33.CrossRefGoogle Scholar

82 Connolly, W., The Terms of Political Discourse (New Jersey, 2nd ed., 1983), p. 64.Google Scholar

83 Lukes, , op. cit. n. 81 above, p. 13.Google Scholar

84 See Benton, , op. cit. n. 80 above, pp. 24–25.Google Scholar

85 Held, , op. cit. n. 68 above, ch. 5 and p. 137.Google Scholar

86 Ibid., p. 156.

87 Flathman, , op. cil. n. 78 above, p. 38.Google Scholar

88 Gray, makes a similar move during his discussion of common ownership: op. cit. n. 2 above, pp. 280–281.Google Scholar

89 We therefore think Gray, , op. cit. n. 59 above, pp. 207–214Google Scholar, a little hasty in locating stewardship within a communitarian political philosophy if by that he thinks it can only be at home there. Furthermore, this move may well be a hostage to fortune given: (i) the diversity of political and philosophical communitarianism which ranges from analyses of the political and other implications of specific accounts of human identity (see, for example, Taylor, C., Sources of the Self (Cambridge 1989), part I)Google Scholar to prescriptions about schooling (see Etzioni, A., The Spirit of Community (New York 1993), ch. 3)Google Scholar; and (ii) the suspicion that non-communitarian—usually dubbed “liberal”— philosophies have more than enough resources to accommodate communitarian concerns.

90 A classic statement of which is found in F., Nietzsche, The Genealogy of Morals (New York 1956).Google Scholar

91 Yannacone, for example, writes that “the food and fiber demands of civilization have established that the prime agricultural lands of the United States, at least, are property vested with sufficient public interest to claim equitable protection by and on behalf of the people of the United States”: n. 60 above, pp. 74–75 (emphasis ours).Google Scholar

92 Hume, D., An Enquiry Concerning the Principles of Morals (3rd ed., Selby-Bigge, L.A. and Nidditch, P.H. (eds.), Oxford 1975), Section III, part I, pp. 183–186Google Scholar. For an analysis of why our current situation may be so much more parlous see Beck, U., Risk Society (London 1992), chs. 1 and 2.Google Scholar

93 Caldwell, op. cit. n. 67 above, p. 770. Specifically, he suggests that rights of ownership in land should be redefined as rights of use and occupation of particular parcels of land. The effect of this is that while an individual with these rights would enjoy possession of the land, the ultimate repository of the rights is society. He further suggests that such rights of occupancy could be defined by law and land classified according to its economic and ecological capabilities. The occupier would be made aware of the land activities in which he might freely engage, as well as his obligations in relation to the land, which might include protection of air and water quality and the integrity of ecosystems: ibid. In the UK, the Countryside Commission recently published a handbook on Countryside Stewardship (CCP 453), in which they propose a scheme of management agreements “to enhance and conserve important English Landscapes, their wildlife habitats and history”. The scheme offers incentive payments to landowners for changes to farming and land management practice which produce conservation benefits or improved access and enjoyment of the countryside (p. 2).

94 For an argument that any attempt to justify a regime of private property faces near insuperable moral objections see Waldron, J., “Homelessness and the Issue of Freedom” (1991) 39 UCLA Law Review 295Google Scholar and “Property, Justification and Need” (1993) VI Canadian Journal of Law and Jurisprudence 185.Google Scholar