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PROPERTY AND RIGHTS

Published online by Cambridge University Press:  04 January 2010

Jan Narveson
Jan Narveson
Affiliation:
Philosophy, University of Waterloo
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Abstract

I present what I take to be the “classical” approach to property rights, in which property is basically a unitary concept: owners are the ones with the right to do, and prohibit others from doing, whatever there is to do with the thing owned, within the limits imposed by the rights of others to their things. I expound and defend the idea of “first acquisition” in more or less Lockean mode. I also point to the many difficulties of application of the general idea, leading to the need to negotiate at many points. For example, the vagueness of land ownership as we consider what goes on in the earth below or the sky above; to consideration of not just possible physical damages to others by virtue of ownership, but also aesthetic ones; and to the increasingly important area of intellectual property. I argue that the original idea continues to hold, though it underdetermines any number of specific issues.

Type
Research Article
Information
Social Philosophy and Policy , Volume 27 , Issue 1 , January 2010 , pp. 101 - 134
Copyright
Copyright © Social Philosophy and Policy Foundation 2010

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References

1 Freyfogle, Eric, On Private Property (Boston, MA: Beacon Press, 2007), xxiGoogle Scholar. Freyfogle is Professor of Law at the University of Illinois.

2 Rousseau's distinction is found in his Social Contract, chapter 8: “What man loses is his natural freedom and an unlimited right to everything that tempts him and that he can get; what he gains is civil freedom and the proprietorship of everything he possesses. … [O]ne must distinguish carefully … between possession, which is only the effect of force or the right of first occupant, and property, which can only be based on a positive title.” See Rousseau, Jean-Jacques, On the Social Contract (with Geneva Manuscript and Political Economy), trans. Masters, Judith R. (New York: St. Martin's Press, 1978), 56Google Scholar; emphasis added.

3 According to the Public Broadcasting System Web site on Rome (http://www.pbs.org/empires/romans/empire/slaves_freemen.html): “Another difference between Roman slavery and its more modern variety was manumission—the ability of slaves to be freed. Roman owners freed their slaves in considerable numbers: some freed them outright, while others allowed them to buy their own freedom. The prospect of possible freedom through manumission encouraged most slaves to be obedient and hard working…. Formal manumission was performed by a magistrate and gave freed men full Roman citizenship. The one exception was that they were not allowed to hold office. However, the law gave any children born to freedmen, after formal manumission, full rights of citizenship, including the right to hold office.”

On the idea of buying out of slavery in the modern setting of Sudan, see Appiah, Kwame Anthony and Bunzl, Martin, eds., Buying Freedom (Princeton, NJ: Princeton University Press, 2007)Google Scholar.

4 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974)Google Scholar, takes this approach. Cohen, G. A., Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995)CrossRefGoogle Scholar, takes Nozick to be doing so; see esp. chap. 3, “Self-Ownership, World Ownership, and Equality,” 67–91. Kymlicka, Will, Contemporary Political Philosophy: An Introduction (Oxford: Oxford University Press, 1990), 103–25Google Scholar, discusses the notion that liberty is founded on self-ownership at some length. My disagreement with much of Kymlicka's treatment would take too long to explain here. Note that I do not take these writers to suppose that either Locke or Mill themselves took the principle of liberty to be founded on self-ownership. Locke thinks that it is founded on reason, whatever that is supposed to mean, and Mill thinks that it is founded on utility.

5 In so saying, I disagree with G. A. Cohen, who proposes that self-ownership is fully reflexive, so that “what owns and what is owned are one and the same, namely, the whole person” (Cohen, Self-Ownership, Freedom, and Equality, 69). I do not think that pure reflexivity makes sense, metaphysically speaking. What does make sense is the control of the rest of us by our proprietarily so-called “selves,” that is, the consciously deliberating, willing, and feeling parts of our minds. This may be a metaphysical issue of little import—apart from its connections to, say, slavery. And in any case, I cannot discuss the issue further in the present essay.

6 Perhaps minds are entirely physical, in which case perhaps there is a literal location for the decision-making parts of the mind. That metaphysical question is of no special concern in this connection, interesting though it may be in its own right.

7 Current federal income tax rates in the United States do not quite reach the 50 percent level, but they do in Canada, where I live, and in some countries in Europe. In any case, adding up various taxes and charges that amount to taxes (at the municipal, state, and federal level) will yield total tax levels on this order even in the United States.

8 Malcolm Murray analyzes this, brilliantly, as a matter of acting with the consent of the individual affected. See Murray, Malcolm, The Moral Wager (New York: Springer, 2007), esp. chap. 6Google Scholar.

9 Gauthier, David, Morals by Agreement (New York: Oxford University Press, 1986), 205Google Scholar.

10 Freyfogle, On Private Property, 7.

11 There is some dispute about Locke's intentions here. But in saying “God, who hath given the World to Men in common …” (Second Treatise of Civil Government, sec. 26), he certainly leaves the impression that everyone has a claim to the land, one which needs to be overturned by argument (which he tries to provide).

12 Hobbes, Thomas, Leviathan (New York: E. P. Dutton, 1950), chap. XII, p. 107Google Scholar.

13 For further discussion, see Levey, Ann, “Liberty, Property, and the Libertarian Idea,” in Murray, Malcolm, ed., Liberty, Games, and Contracts (Burlington, VT: Ashgate Publishing Co., 2007), 147–56Google Scholar; see also my comments on her arguments (ibid., 231–34).

14 Hobbes, Leviathan, chap. XIV.

15 Locke, Second Treatise of Civil Government, sec. 6.

16 Ibid., sec. 123.

17 It has been popular to maintain that ownership is essentially a “bundle” of distinguishable rights, as if they had nothing to do with each other. For further discussion of this view, which I dismiss as a confusion, see Narveson, Jan, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988; republished, Peterborough, Ontario: Broadview Press, 2001), 64Google Scholar; see esp. note 6 on p. 342.

18 I mean ‘legally’ in the sense of called for by some actual body of law. The general point of view of this essay is the classic one in this respect as well—that positive law is properly subordinate to morality, which has often enough, as by Aquinas, been dubbed ‘moral law.’ Possession used to be said to be nine points of the law; in recent times, however, public intervention is so pervasive that the need for sharply distinguishing positive law and moral law is now evident.

19 See Narveson, Jan, “The Invisible Hand,” Journal of Business Ethics 46, no. 3 (2003): 201–12CrossRefGoogle Scholar.

20 Christman, John, The Myth of Property (New York: Oxford University Press, 1994), 73–74Google Scholar. For Christman's definitions of L2 and L3, see ibid., 68 (emphasis in the original). Christman is Associate Professor of Philosophy at Pennsylvania State University.

21 The Province of British Columbia's Mineral Tenure Act of 2002 permits this. See Salcito, Kendyl, “‘War Brewing’ over Mining Rights in Rural BC,” http://thetyee.ca/News/2006/06/14/MiningRights/Google Scholar. As a case in point, one Bruce Essington, who “lives in a tarp-covered bread truck on the side of Bluenose Mountain … has bought rights to about 150 acres of his neighbours' land. For $50.” And “Essington was not charged for repeatedly scrawling ‘free miners lic.’ in blue paint on private property and removing ‘For Sale’ signs at the entrance of Kurt Yakelashek's driveway, for snooping around the property at night, or for leaving piles of beer cans around the grounds.”

22 Freyfogle, On Private Property, 20; the prairie dog example is discussed on pp. 1–2.

23 Braithwaite, R. B., The Theory of Games as a Tool for the Moral Philosopher (Cambridge: Cambridge University Press, 1954)Google Scholar. Braithwaite was for a long time Professor of Moral Philosophy at Cambridge.

24 Professor Sheffer discovered that all of the standard operations in the propositional calculus (or truth-functional logic) can be defined in terms of the function that amounts to “not p and q,” nowadays referred to as the ‘NAND’ operator, short for ‘not both … and….’ In fact, Charles Sanders Peirce discovered this thirty years earlier, but did not publish it. Sheffer's “discovery” (which there is no reason to think he plagiarized from Peirce) was published in 1913. Sheffer, H. M., “A Set of Five Independent Postulates for Boolean Algebras, with Application to Logical Constants,” Transactions of the American Mathematical Society 14 (1913): 481–88CrossRefGoogle Scholar.

25 Holcombe, Randall, “Common Property in Anarcho-Capitalism,” Journal of Libertarian Studies 19, no. 2 (Spring 2005): 3–26Google Scholar. Holcombe is DeVoe Moore Professor of Economics at Florida State University.

26 Ibid., 3.

27 Ibid., 5.

28 Ibid., 8.

29 Ibid., 3–4.

30 Freyfogle, On Private Property, 55.