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On the Optimal Mix of Private and Common Property*

Published online by Cambridge University Press:  18 June 2009

Richard A. Epstein
Richard A. Epstein
Affiliation:
Law, University of Chicago
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Extract

A broad range of intellectual perspectives may be brought to bear on any important social institution. To this general rule, the institution of private property is no exception. The desirability of private property has been endlessly debated across the disciplines: philosophical, historical, economic, and legal. Yet there is very little consensus over its proper social role and limitations. Is it possible to find a unique solution to questions of property and private ownership, good for all resources and for all times? The famous defense of private property that is found in chapter 5 of John Locke's Second Treatise of Government answers this question in the affirmative, for Locke writes as though all property was given to mankind in common, and then seeks to find the quickest and most expeditious way to convert all common property into private property. His implicit, but undefended, assumption is that common forms of property are both undesirable and unstable, while private forms of ownership are always just the opposite. Yet his preferred method for moving from a commons to a regime of private property—the unilateral decision to appropriate by each actor—is one that has been frequently condemned as a sop to unbridled egotism, even though it is subject to two constraints: the first against waste, and the second requiring the appropria-tor to leave “enough, and as good” for others.

Type
Research Article
Information
Social Philosophy and Policy , Volume 11 , Issue 2 , Summer 1994 , pp. 17 - 41
Copyright
Copyright © Social Philosophy and Policy Foundation 1994

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References

1 See Locke, John, Two Treatises of Government, ed. Laslett, Peter (New York: Mentor, 1960)Google Scholar, Second Treatise [1690], ch. 5, section 27 (for the “enough, and as good” proviso) and section 31 (against waste).

2 See the discussion of water rights in Section III below.

3 Marx, Karl and Engels, Friedrich, The Communist Manifesto, in Karl Marx: Selected Writings, ed. McLellan, David (Oxford: Oxford University Press, 1977), pp. 232, 237.Google Scholar

4 Rousseau, Jean-Jacques, Discourse on the Origins and the Foundations of Inequality among Men [1755], in The First and Second Discourses, ed. Masters, Roger D. (New York: St. Martin's Press, 1964), pp. 141–42.Google Scholar

5 ibid., p. 142. To fill in the blanks, the full sentence reads:

What crimes, wars, murders, what miseries and horrors would the human race have been spared by someone who, uprooting the stakes or filling in the ditch, had shouted to his fellow-men: Beware of listening to this impostor: you are lost if you forget that the fruits belong to all and the earth to no one!

6 Blackstone, William, Commentaries on the Laws of England (Chicago and London: University of Chicago Press, 1979), p. 2.Google Scholar

7 Note, for what it is worth, that the use of the phrase “in the universe” is inconsistent with the positivist notion that property rights are good only in the jurisdiction that confers them. Here it appears that all are equally bound, whether or not they are subjects of the sovereign of the place where the property is located.

8 See Burnham v. Beverly Airways, Inc., 42 N.E.2d 575 (Mass. 1942)Google Scholar, noting that low-level interference with land use is a very different matter. On the broadcast spectrum, see Emord, Jonathan W., Freedom, Technology, and the First Amendment (San Francisco: Pacific Research Institute, 1991)Google Scholar, ch. 11, noting that the question of wrongful harm caused by use of radio frequencies was always to other frequency users. Harm to landowners was not an issue.

9 For a further discussion of these issues, see Epstein, Richard A., “Property as a Civil Right,” California Western Law Review, 1992, pp. 187–207.Google Scholar

10 Blackstone, , Commentaries, p. 7:Google Scholar

And the art of agriculture, by a regular connexion and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received or adopted. It was clear that the earth would not produce her fruits in sufficient quantities, without the assistance of tillage: but who would be at the pains of tilling it, if another might watch an opportunity to seise upon and enjoy the product of his industry, art, and labour?

Blackstone had similar views with respect to chattels and construction:

But no man would be at the trouble to provide either [habitations or raiments], so long as he had only a usufructuary property in them, which was to cease the instant that he quitted possession;—if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. (Ibid., p. 4)

11 This is a point that Locke clearly recognized; see his Second Treatise, section 34 (one “ought not to meddle with what was already improved by another's Labour”); and section 37 (“he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind”).

12 See, e.g., Stevenson, Glenn G., Common Property Economics (Cambridge: Cambridge University Press, 1991)CrossRefGoogle Scholar, ch. 3, for a discussion of the difference between unlimited open access and common property. Locke himself understood the point, for he notes that enclosure of land cannot be made when the land is held in common by compact, that is, by a small group of individuals who have agreed to keep it open by contract. See Locke, , Second TreatiseGoogle Scholar, ch. 5, section 35. In essence, he has described a closed commons, different from that which exists in the state of nature.

13 See Hume, David, A Treatise of Human Nature, ed. Selby-Bigge, L. A. (Oxford: Clarendon Press, 1888), Book 3.Google Scholar

14 The Institutes of Justinian, 5th ed., trans. Moyle, J. B. (Oxford: Clarendon Press, 1913)Google Scholar, Book 2, Title 1, pr. The reference to various titles, i.e., ways of acquiring ownership of private property, forms the basis for Blackstone's treatment of the subject in his Commentaries. See Blackstone, , Commentaries, chs. 14–19.Google Scholar

15 Institutes of Justinian, Book 3, Title 1, 11–48.Google Scholar

16 Richard Hooker's characterization of the law of reason captures the matter well: “Law rational therefore, which men commonly use to call the law of nature, meaning thereby the law which human nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason.” Quoted in Arkes, Hadley, “Natural Law and the Law: An Exchange,” First Things, no. 23 (05 1992), p. 46.Google Scholar

17 Institutes of Justinian, Book 1, Title 2, 1: “[T]hose rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations.”

18 Ibid., Book 1, Title 2, 11: “But the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable; but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.”

19 The impartial spectator is, of course, Adam Smith's contribution to the overall issue. See his Theory of Moral Sentiments, ed. Macfie, A. L. and Raphael, D. D. (Indianapolis: Liberty Classics, 1982)Google Scholar, and also his Lectures on Jurisprudence, ed. Meek, R. L., Raphael, D. D., and Stein, P. G. (Indianapolis: Liberty Classics, 1982)Google Scholar. See, e.g., his discussion of the role of the impartial spectator in justifying the rules of occupation as they existed in both Roman and common law, in Smith, , Lectures on Jurisprudence, p. 17:Google Scholar

From the system I have already explain'd, you will remember that I told you we may conceive an injury was done one when an impartial spectator would be of the opinion he was injured, and would join him in his concern and go along with him when he defended the subject in his possession against any violent attack, or used force to recover what had been thus wrongfully wrested out of his hands.

20 For elaboration, see Epstein, Richard A., “The Path to The T. J. Hooper: The Theory and History of Custom in the Law of Tort,” Journal of Legal Studies, vol. 21 (1992), pp. 1–38.CrossRefGoogle Scholar

21 Just this contrast is stressed in Ellickson, Robert C., “Property in Land,” Yale Law Journal, vol. 102 (1993), pp. 1315, 1320CrossRefGoogle Scholar, where he defends the efficiency thesis, which “asserts that land rules within a close-knit group evolve so as to minimize its members' costs” (italics in original).

22 The literature on this issue is huge. For my early full-throated defense of strict liability in stranger cases, see Epstein, Richard A., “A Theory of Strict Liability,” Journal of Legal Studies, vol. 2 (1973), pp. 151–204CrossRefGoogle Scholar. For my later, more cautious views in the same direction, see Epstein, Richard A., “Causation—In Context: An Afterword,” Chicago-Kent Law Review, vol. 63 (1987), pp. 653–80.Google Scholar

23 This was the mistake made with the spectrum when Justice Felix Frankfurter, having noted the need to prevent interference, held that the charge of the Federal Communications Commission to determine the public interest, convenience, and necessity also allowed it to determine the composition of the traffic. See NBC v. United States, 319 U.S. 190, 215–16 (1943)Google Scholar. It almost goes without saying that the problem of scarcity could be relieved by a price system, without the need for administrative determination of who is entitled to use what frequency. And, never forget, Coase, R. H., “The Federal Communications Commission” Journal of Law and Economics, vol. 2, (1959), pp. 1–40.CrossRefGoogle Scholar

24 See Institutes of Justinian, Book 2, Title 1.

25 See. e.g., The Institutes of Gaius, trans. de Zulueta, F. (Oxford: Clarendon Press, 1946), II, 30Google Scholar, where a purported conveyance to a third party is ineffective, even if all forms are observed.

26 Locke, , Second Treatise, section 29.Google Scholar

27 For my further criticisms of the labor theory of value, see Epstein, Richard A., “Possession as the Root of Title,” Georgia law Review, vol. 13 (1979), pp. 1221–43Google Scholar; and Epstein, Richard A., “Luck,” Social Philosophy & Policy, vol. 6, no. 1 (1988), pp. 17–38.CrossRefGoogle Scholar

28 Or for that matter, with efforts to justify the acquisition of property on a theory of desert. See Christman, John, “Entrepreneurs, Profits, and Deserving Market Shares” Social Philosophy & Policy, vol. 6, no. 1 (1988), pp. 1–16CrossRefGoogle Scholar. The mistake in Christman's elegant analysis is that he thinks he destroys the Lockean theory by undermining a theory of individual desert. But he fails to come to grips with the full range of efficiency arguments that can be used to defend the institution—or indeed to make the strongest arguments against the desert theory itself.

29 For a splendid account of the transformation, see Rose, Carol M., “Energy and Efficiency in the Realignment of Common-Law Water Rights,” Journal of Legal Studies, vol. 19 (1990), pp. 261–96.CrossRefGoogle Scholar

30 See note 6 above.

31 Coase, Ronald H., “The Problem of Social Cost,” Journal of law and Economics, vol. 3 (1960), pp. 1–44.CrossRefGoogle Scholar

32 Blackstone, , CommentariesGoogle Scholar, chs. 14–19. The titles that he discusses are Title by Descent, Title by Purchase, Title by Escheat, Title by Occupancy, Title by Prescription, Title by Forfeiture, and Title by Alienation. Only the last has to do with consensual arrangements.

33 Institutes of Justinian, Book 2, Title 1, 12.Google Scholar

34 The “perhaps” before inheritance is deliberate. Blackstone was generally of the opinion that inheritance was not a natural right of property but was one that could be given or withheld by the state. See Blackstone, , CommentariesGoogle Scholar, chs. 10–13. From the point of view of the analysis here, this concession clearly seems to be a mistake, for it leaves open two possibilities neither of which are conducive to overall creation of wealth. One is that the property reverts back to its unowned state, so that the first occupier after death can control it. This institution which celebrates the “general occupant” was rejected as a general matter in English law. The assize mort d'ancestor was designed in the reign of Henry II to allow the heir to bring suit to recover land which was entered by a stranger after the death of an ancestor. For particulars, see Maitland, F. W., The Forms of Action at Common law, ed, Chaytnor, A. and Whittaker, W. J. (Cambridge: Cambridge University Press, 1936), pp. 19–40Google Scholar. The second possibility is that the concession allows for extensive taxation of the property by the state as a precondition to its passage to the next generation. Blackstone was doubtless aware that the English kings had long levied taxes and imposed burdens on succession at death, and doubtless did not want to announce a doctrine of private property law that was so subversive of the then-common practice. It is also worth noting that the constitutionality of death taxes in the U.S. has rested in large measure on the proposition that “[t]he right to take property by devise or descent is the creature of the law, and not a natural right—a privilege, and therefore the authority which confers it may impose conditions on it.” Magoun v, Illinois Trust & Savings Bank, 170 U.S. 283, 288 (1898)Google Scholar (sustaining state inheritance tax). See also Knowlton v. United States, 178 U.S. 41 (1899)Google Scholar (sustaining federal inheritance tax).

35 “Adverse possession” refers to the body of rules that determines when a party in possession of real property loses the right to recover it from someone who has occupied it “adverse” to his interest. “Prescription” is a more general term that refers to the creation of rights by conduct that is inconsistent with the ownership of another: thus, an easement is acquired by prescription if one person openly and notoriously uses a path across the land of another. The problem of disposition by nonowners arises whenever X sells or otherwise disposes of O's property without O's authorization or consent.

This last topic was one of vast importance in the ancient law because of the high volume of theft and the want of any system of recordation. The orthodox legal theory of all legal systems presupposed that no one could convey a better title than he had; but that position placed the good-faith purchaser at risk even when the original owner was the “cheaper cost-avoider” with respect to the common risk, often illegal sale by a bailee or a thief. By allowing the good-faith purchaser to claim clear title, the basic legal rule created incentives for the original owner to be careful in his selection of bailee or to better guard his property. Although there were many local variations, the pragmatic instinct generally won out over the theoretical impulse to protect the original owner from the loss of title without consent and without the commission of any wrong. For discussion of the Roman rules, see Institutes of Justinian, Book 2, Title 1, 25–34Google Scholar; see also Levmore, Saul X., “Variety and Uniformity in the Treatment of Good Faith Purchasers,” Journal of Legal Studies, vol. 16 (1987), pp. 43–65CrossRefGoogle Scholar, for a wide comparative discussion.

36 The same result applies to contracts for the sale of labor. If A has promised his services to B, and C desires them, it is possible for C to purchase the right to use them from B, That transaction is far clumsier than the purchase of goods, and it is therefore more common for individual persons to reserve the right to redeploy their labor when that option is an important one. But where the contract for labor involves the transfer of information, or the development of transaction-specific capital, long-term contracts may be preferred in order to protect B from being held up by A midway through the project. Often covenants not to compete are part of the original agreement.

37 Demsetz, Harold, “Toward a Theory of Property Rights,” American Economic Review, vol. 57 (Papers & Proceedings, 1967).Google Scholar

38 The system of territories does not work for migratory animals and birds. There the temptation of any single landowner is to capture the animals while they are on his territory, no matter what their state of maturity. Some comprehensive treaty across territories is needed, which is no easy matter to obtain. Think of the difficulties in finding some international accommodation on whaling that keeps the Norwegians, Japanese, and Americans happy.

39 Locke, , Second Treatise, section 37.Google Scholar

40 Ibid.

41 Ibid., section 30.

42 Epstein, Richard A., “Why Restrain Alienation?” Columbia Law Review, vol. 85 (1985), pp. 970–90.CrossRefGoogle Scholar

43 See Thompson, E. P., Customs in Common (New York: The New Press, 1991), pp. 97–184.Google Scholar

44 See Coffin v. The Left Hand Ditch Co., 6 Colo. 443 (1882)Google Scholar, an action brought by a prior appropriator against a riparian who destroyed a dam used to secure the diversion of water from the river.

45 See, e.g., Ellickson, Robert C., Order without Law: How Neighbors Settle Disputes (Cambridge: Harvard University Press, 1991).Google Scholar

46 See Locke, , Second TreatiseGoogle Scholar, section 27. For a similar broad account of property rights in the person, see Madison, James, “Property” [1792], reprinted in The Founders' Constitution, ed. Kurland, P. and Lerner, R. (Chicago and London: University of Chicago Press, 1987), ch. 16.Google Scholar

47 Lateral support is the support that the land of one owner gives to the land of his neighbor; subjacent support is that which land below gives to land located above it, as with mining claims. The duty of support implies that one person is not allowed to dig on his land to the extent that the land of a neighbor will no longer stay in place. For explication of the various rules governing these matters, see Epstein, Richard A., “Nuisance Law: Corrective Justice and Its Utilitarian Constraints,” Journal of Legal Studies, vol. 8 (1979), pp. 49–102.CrossRefGoogle Scholar

48 See Ellickson, , “Property in Land” (supra note 21), pp. 1327–28.Google Scholar

49 U.S. Constitution, Amendment 5.

50 See Epstein, Richard A., Takings: Private Property and the Pmivr of Eminent Domain (Cambridge: Harvard University Press, 1985)Google Scholar. I will spare the reader the details of the argument here.

51 Corfield v. Coryell, 6 Fed. Case 546 (Gr. Ct. E. D. Pa. 1823)Google Scholar. The decision was handed down by Justice Bushrod Washington while he was riding circuit between Supreme Court terms.

52 Ibid., pp. 551–52:

What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.

53 Ibid., p. 552.

54 Geer v. Connecticut, 161 U.S. 519 (1896).Google Scholar

55 U.S. Constitution, Article I, section 8: “Congress shall have Power … [t]o regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes.” The clause reads as though it only confers powers on Congress and imposes no limitations on the states, save where state law is in direct conflict with federal legislation. But the clause has long been read to contain a “negative” or “dormant” power to preclude state regulation that interferes with trade and transportation across state lines even in the absence of congressional legislation.

56 Geer v. Connecticut, p. 522.Google Scholar

57 Justinian's Digest, Book 41, Title 1, 1: “Thus all the animals which can be taken upon the earth, in the sea, or in the air, that is to say, wild animals, belong to those who take them … [b]ecause that which belongs to nobody is acquired by the natural law by the person who first possesses it.” See TThe Digest of Justinian, ed. Watson, Alan (Philadelphia: University of Pennsylvania Press, 1985).Google Scholar

58 Geer v. Connecticut, p. 539.Google Scholar

59 Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977)Google Scholar. This passage was cited with approval in Hughes v. Oklahoma, 441 U.S. 322, 334–35 (1979)Google Scholar, overruling Geer v. Connecticut and restoring the ancient law of property to its traditional splendor.

60 See Epstein, Richard A., “The Static Conception of the Common Law,” Journal of Legal Studies, vol. 9 (1980), pp. 253–75.CrossRefGoogle Scholar