I. The resource justice literature & Wenar’s novel proposal

There is now an expansive philosophical literature that places questions of resource justice within a global context, asking not only what duties a state has to its citizens with respect to resources, but also what duties states owe to non-citizens with respect to resources. In the main, the focus of this literature has been on questions of distributive justice: that is, issues concerning the fair allocation of resources and the wealth produced from those resources.^{Footnote 5} Traditionally, philosophical analysis of these issues has proceeded on the basis of the claims of the present generation, considered in light of past wrongs. Increasingly, however, philosophical analysis is done in the face of intergenerational claims as well, which in the view of at least some theorists require conservation of certain resources to meet the demands of future generations, and therefore entail limitations on present consumption.^{Footnote 6} Moreover, philosophers have increasingly distinguished claims made on behalf of individuals from claims made on behalf of groups, and have recognized that under at least some circumstances groups rather than individuals are the appropriate locus for resource claims.^{Footnote 7}

Sometimes these claims are characterized as “property rights.”^{Footnote 8} Nevertheless, within this literature, the legal concept of property has played a secondary or derivative role in the following sense: property rules are prescribed by a normative account of entitlement (e.g., first occupancy theories, “labour-mixing” theories, etc.) and/or by a principle of distributive justice (e.g., the principle of utility, equality of opportunity, etc.). Although a legal understanding of property may place practical constraints on the normative prescriptions made by such theories, property does not perform any independent work in analysing what justice requires or how we ought to respond to a given injustice—independent, that is, from the theory of entitlement or theory of justice in play. One does not, in other words, begin with an analysis of the current rules and principles of property law and then proceed to derive normative prescriptions on the basis of standing law. Indeed, to purport to do so may seem to rest on a confusion about what it means to be doing political philosophy as opposed to legal theory.

Wenar’s analysis of the resource curse is therefore unique in that he proposes to reverse the usual division of labour between normative moral and political philosophy, on the one hand, and legal theory, on the other. His starting point is not, for instance, a normative theory of the rights of a given group to certain territorial resources in virtue of their relationship to that territory, the methodological approach taken by some theorists of territorial rights.^{Footnote 9} Nor is his starting point a historical entitlement theory that confers property rights on individuals or collections of individuals on the basis of their moral standing, the methodological approach taken by some libertarians.^{Footnote 10} Instead, Wenar begins with the premise that the people who occupy a given political territory (i.e., a state) “own”—in the legal sense—the resources within that territory. From this premise, which I will refer to as “popular ownership” for shorthand, Wenar argues that “[t]he plainest criticism of global commerce today is not that it violates some abstract distributive standard, but that it violates property rights.”^{Footnote 11}

To demonstrate that popular ownership in this sense is a widely-accepted legal principle, Wenar refers to international human rights instruments, and in particular the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.^{Footnote 12} These documents contain preambular provisions which provide, inter alia, that “[a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources.”^{Footnote 13} He also refers to domestic constitutions that invoke similar language; for instance, by designating resources as “common heritage” that “belongs to” the people.^{Footnote 14} Finally, he refers to statements of political leaders who have publicly accepted these propositions.^{Footnote 15}

Critically, Wenar uses the idea of popular ownership to draw an analogy from legal rules governing the relationship between private property owners, sellers, and buyers in the context of commercial transactions to the conduct of states trading in resources.^{Footnote 16} This analogy forms Wenar’s conceptual map for understanding injustice in the trade of resources. The rules he focuses on can be summarized as follows:

• • In general, only the owner of a good or someone with the permission of the owner can sell that good.

• • Depriving property owners of their property without their permission constitutes the crime of “theft.”

• • Selling and buying goods that have been sold without the owner’s permission constitute the complementary crimes of “selling” and “receiving” “stolen goods.” However, both legal offences are subject to the defence (i.e., excuse of criminal wrongdoing) that the good was sold or purchased in “good faith,” where sellers or buyers can demonstrate that they were not aware or could not reasonably have been aware of the fact that the seller did not hold a clean title.

• • Contracts that facilitate criminal activity are generally void (again, subject to the good faith exception) and this includes contracts for the sale of goods.

It is uncontroversial that these rules apply to the conduct of private parties. But Wenar’s claim is that similar legal rules apply to state exploitation of territorial resources as well. Insofar as the current international legal system allows manifestly illegitimate political regimes to dispose of their resources in disregard of these rules, he contends, it is unjust.^{Footnote 17}

Why think that legal rules designed to govern the conduct of private parties similarly govern the conduct of states? Wenar’s argument is that the fact that a people of a given territory own (again, in the legal sense) the natural resources within that territory is sufficient to justify this extension: just as A cannot use or otherwise dispose of B’s property without B’s permission, a government cannot dispose of the land and resources within its jurisdictional territory without its people’s permission. He gives content to this idea through the notion of “consent.”^{Footnote 18} Consent is given, he suggests, when there are institutions in place to ensure that policy decisions are made with reasonable transparency, and which provide mechanisms for public influence over those decisions.^{Footnote 19} Therefore, when other countries know, or reasonably ought to know, that these institutional conditions are lacking, they are prohibited from purchasing or trading in resources from that country.^{Footnote 20}

As a practical matter, however, Wenar observes that most consumer countries benefit from resource trade downstream in the supply chain, by purchasing finished products that are produced more cheaply in other countries, and that many of those producer countries may well continue to purchase “stolen” resources.^{Footnote 21} His solution is designed to address this difficulty. Rather than simply penalizing first purchasers (i.e., the would-be property rights violators), he proposes a tax and tariff system targeting countries that “trade in stolen goods.” He further stipulates that those revenues be held in a “Clean Hands Trust” for the people from whom the resources were stolen, to be returned to them when institutional conditions improve.^{Footnote 22}

II. The challenge: reasons for resisting a property-based approach

The problem that Wenar addresses is an important one, and his analysis brings to light patent injustices in the global trade of resources that are too often hidden in plain sight. There is also much to commend in his proposed solution, which is powerful both in its simplicity and in its uncompromising condemnation of complicity in those unjust practices. Nevertheless, I suspect that many liberals would take exception to making property rights (rather than civil and political rights) the focal point of the analysis of injustice in the global trade of resources. Offered as an alternative to distributive justice approaches, Wenar’s proposal must be evaluated against the prima facie objections that a property-based approach faces on this front.

A property-based approach raises two sets of concerns. First, “theft” and “stolen property” analogies will strike some as providing a poor understanding of both the wrong and the remedy. Second, the characterization of self-determination and territorial sovereignty over resources in terms of “property ownership” will generate suspicion that it invites a libertarian Trojan Horse into the analysis of resource use and control rights that may ultimately prove incompatible with the concerns of distributive justice.

To begin with, one concern is that the language of property rights doesn’t do a good job of describing the wrong because it is too object-centred. One might therefore object that property does not make human dignity or “personhood” central in the way that it ought to be. For example, a common criticism of Richard Posner’s economic analysis of sexual crimes such as rape^{Footnote 23} is that “theft” inappropriately describes the injury, since it presupposes that “bodily integrity is an owned object with a price.”^{Footnote 24} As a consequence, Posner grossly mischaracterizes the underlying social purpose of criminal laws against sexual violence, which he suggests is to protect the “market” in sex and marriage. Similarly, referring to unjustly appropriated resources as “stolen property” presupposes that the resources in question are objects with a price, when sometimes the concern is that the interest at stake (e.g., a clean and healthy environment) should not be up for sale at all.

Moreover, even when the alienability of a given resource is not in contention, one might contend that property’s emphasis on control over objects is misplaced when the practices involved in exploiting resources and developing them into marketable commodities are the more immediate object of condemnation. It is for this reason that diamonds which are mined using exploitative child labour are referred to as “blood diamonds” rather than “stolen property.”^{Footnote 25} It is not their sale without permission from the rightful owners that raises the gravest concern, but the human suffering involved in mining them. Even if governments developed those mineral resources with permission from the people and used the wealth generated from their sale to benefit the public, many would still find their sale objectionable.

A related concern is that a property-based approach does a poor job of prescribing an appropriate response to resource injustice. Wenar’s proposal focuses on monetary compensation for the market value of the stolen resources. What is complained about in cases of resource injustice, however, is not simply lost profits from the sale of resources, but displacement of community and culture, opportunity costs associated with delayed socioeconomic development, environmental degradation precipitated by removal, and so on.^{Footnote 26} Deciding whether such losses are compensable and quantifying them are tasks that undermine the simplicity and feasibility of the proposed solution: it no longer looks more straightforward than what distributive justice approaches offer.

Even supposing this could be done without much difficulty, however, there is an additional concern that expanding compensation to accommodate additional losses inappropriately characterizes the harm suffered by the victims in the manner already suggested. Namely, it implies that these forms of human suffering have a price, when arguably the complaint is precisely that wrongful resource exploitation transforms things which ought not to be sold into marketable objects.

A second and broader set of concerns has to do with the consequences of characterizing the public interest in resources as “ownership.” Importantly, Wenar’s popular ownership principle is not meant to serve as a limitation on private ownership, as is the case with left-libertarian theories of justice that use “common ownership” of the natural world to defend redistributive policies. Instead, it is meant to serve as a limitation on government power. In this respect, it is really a scaled-up notion of “private ownership” rather than a structurally unique property relationship—an issue I will return to, below. At this stage, we can observe that it isn’t clear how or if Wenar’s principle places any limitations on what individuals can own or what they can do with their property when it comes into conflict with the broader public interest. Popular ownership of natural resources may not turn out to be much of a limit on private appropriation, transfer, or use at all.

Moreover, given that the people (i.e., the “owners”) are defined by the territorial boundaries of states, there is reason for concern that popular ownership of resources within a political territory rules out redistributive principles at the global level. When our focus is on the position of less well-off countries that suffer rather than benefit from being rich in resources, this possibility may not seem troubling. However, imagine a world in which a few powerful and wealthy countries happen to hold the world’s supply of an essential resource, such as water, which the people of other less powerful and less wealthy countries desperately need.^{Footnote 27} Would we feel as comfortable with the proposition that those powerful and wealthy countries “own” their resources? For these reasons, liberals may well be sceptical about transplanting a concept that has its home in Nozickian libertarianism to account for the wrongs of resource exploitation for fear that doing so will preclude egalitarian solutions somewhere down the line.^{Footnote 28} Presented as an alternative to distributive justice, a property-based approach may not sit well.

In summary, Wenar’s proposal invites criticism from liberals who have standing reasons to be sceptical of property-based solutions to what appear to be distributive justice problems. The worry is that characterizing wrongful resource exploitation as a violation of property rights cannot yield a satisfying solution either because it mischaracterizes or oversimplifies the interests at stake, or because it runs the risk of inserting illicit anti-redistributive premises into the analysis of those interests.

Given these concerns, it is imperative to demonstrate what focusing on property adds that non-property centric approaches cannot capture. If there is little to gain, then why not appeal to civil and political rights in the first instance and leave the rest to standard principles of distributive justice? This is the challenge that a property-based approach to resource justice faces.

III. “Consent-based” vs “allocative” views of property

Whether or not these objections are well-founded depends largely on the underlying theory of property that guides the proposed framework. That is, I want to insist, they are not concerns inherent to a property-based approach to issues of justice. They are concerns that attend a particular view about property—or more precisely, a particular view about the place of property in a theory of justice—that liberals find troubling. I will refer to this as the “consent-based” view of property. Such views:

1. (1) prioritize property rights over other kinds of human rights;

2. (2) privilege private ownership over other kinds of property interests; and

3. (3) conceptualize private ownership as an absolute and exclusive right over a particular object.

Although elements of this view can be found throughout the classic liberal philosophical tradition, in the contemporary literature it is a view most commonly associated with Robert Nozick and his followers.^{Footnote 29} Such views are often accompanied by an “anti-positivist” theory of entitlement: that is, a theory that rejects the thesis that property rights are nothing more than contingent (permissive) grants from the state to dispose of particular resources for certain purposes.

On consent-based views of property the most basic and fundamental purpose of property rules is not to coordinate activity, or to serve use and enjoyment, but to affirm a core notion of personal inviolability that reflects the equal status of human beings. The idea that individuals are private property owners is thus supposed to function as an important normative constraint on both the conduct of others, and on the legitimate exercise of political power. It is in this sense that “consent” is the lynchpin for such views. The key inquiry is always whether or not a particular transfer of property is consensual: non-consensual transfers are illegitimate because they violate property rights.

The prominent alternative to the consent-based view in the philosophical literature is what I will call the “pure allocative” view. This is the view held by most liberal egalitarians. Pure allocative views of property:

1. (1) prioritize other kinds of human rights over property rights;

2. (2) privilege private ownership over other kinds of property interests only insofar as private ownership better promotes more basic or fundamental social values, or is more efficient at achieving the desired distribution of resources (e.g., because it generates a larger social surplus to distribute);

3. (3) conceptualize private ownership as a contingent and ultimately defeasible claim to use a particular resource, subject to the welfare of others.

On this view of property, the function of property rules is purely (re)distributive: property rights allocate entitlements to income or wealth generated from the exploitation and development of resources. Moreover, how they do so is partly a function of social convention, but principally a function of public policy. Such views thus generally accept the “positivist” thesis that property rights are permissive entitlements that are granted by the state according to principles of distributive justice.

The allure of the consent-based view, and the Nozickian version of this view in particular, over the pure allocative view is twofold. First, the consent-based view captures deep intuitions about inviolability that resonate with lay-conceptions of property rights in many Western, liberal democracies (and especially so in the United States). Second, and more importantly for present purposes, the consent-based view promises to resolve contentious questions of justice on the purportedly less contentious grounds of whether property rights have been violated.

The trouble is that this is highly implausible. In order to make good on this promise, property must form an internally consistent and coherent system of rules that is sufficiently self-defining so as to be categorically isolated from the political process and unencumbered by considerations of the public good. This, in turn, requires the kind of assumptions about the origins and nature of property found in Nozick’s historical entitlement theory, wherein property “fill[s] the space of rights,” unambiguously exhausting the universe of entitlements and corresponding obligations.^{Footnote 30} However, as critics have shown, such notions are not grounded in the legal reality of property rules but in a property “myth.”^{Footnote 31}

Now, Wenar is no Nozickian. Indeed, elsewhere, he has defended a theory of private property rights that reflects robust legal realist sensibilities.^{Footnote 32} Yet, I will argue, it is evident that in the context of this specific problem, which implicates public rather than private ownership, he is attracted to a property-based approach because he is (wittingly or unwittingly) attracted to the Nozickian solution to questions of justice. In effect, Wenar’s proposal reinvents the Nozickian solution by replacing its problematic historical entitlement theory underpinnings with existing legal rules and institutions. The temptation of this move clear: if he is correct in thinking that simply enforcing existing property rights is a solution to the resource curse, then this would absolve philosophers of the difficult task of explaining the specific duties that governments owe to their citizens, and to members of the global community, with respect to particular resources. Unfortunately, this turns out to be too good to be true.

IV. The legal status of popular ownership

Officially, Wenar is neutral on the theory of property underlying his analysis. In response to the set of prima facie objections canvassed in section II, his suggestion is that enforcing property rights is a viable solution to the resource curse because popular ownership of resources is both well-established in law and enforceable by existing legal institutions. Therefore, he need not be committed to the sort of consent-based view that raises these concerns—nor, indeed, need he be committed to any particular view of property. This is purportedly one of the main advantages of Wenar’s criterion of resource justice. Although powerful in its practical implications, it is theoretically modest: it only points out violations of existing legal rules, as opposed to defending a normative theory that requires creating “new” legal rules and “novel” legal institutions to enforce them.^{Footnote 33}

The trouble is that Wenar does not establish the proposition that the people of a given state own the resources within that state’s territory so much as he simply asserts it. He assumes that it is an obvious and uncontroversial proposition that describes existing legal obligations, thus requiring little defence. In reality, however, the legal status of popular ownership is a great deal more complicated than Wenar lets on.

In the first place, Wenar is wrong to assume that popular ownership is an uncontroversial principle of international or domestic law. He correctly observes that popular ownership-like language appears in many human rights instruments and domestic constitutions. However, he does not explore the legal consequences of the recitals that he refers to. Nor does he acknowledge the historical context in which they were adopted. By and large, these recitals are the product of an era when developing countries, and newly independent countries in particular, were anxious to assert their permanent sovereignty over territorial resources against foreign investment, which was seen as a continuation of economic colonialism.^{Footnote 34} Unsurprisingly, in light of this historical context, the effect of these recitals has not been to restrict state power to exploit and trade in resources. To the contrary, they operate as statements of territorial sovereignty; that is, they assert a state’s jurisdictional right to determine the property regime within its established territorial boundaries without external interference from other states or the international community.^{Footnote 35}

Moreover, even divorced from their historical context and contemporary legal function, declarations to the effect that resources “belong to” or are “the common heritage of” the people of a nation, whether found in international or domestic law, are not sufficient to establish that the people own those resources. For one thing, the idea that resources are owned by the people stands in conflict with the longstanding property law principle cuius est solum, which entails that private land owners have both surface and subsurface property rights in the ground below their land.^{Footnote 36} Far from being uncontroversial, in many contemporary states giving effect to popular ownership of resources would have profound consequences for existing entitlements, effectively extinguishing subsurface property rights, and even eliminating many surface property rights, without compensation to landowners.^{Footnote 37}

This kind of approach is, of course, open to states that have adopted the international law instruments that Wenar cites, or that have otherwise incorporated similar language within their domestic constitutions. However, to suggest that it is legally required of them is quite another thing. To the extent that popular ownership-like language has any self-executing legal effect on the exercise of government powers, the more plausible view is that it imposes a modest duty on the state to regulate land and resource development in a manner that is consistent with the public interest. But that is not a property right, it is simply an affirmation of democratic majority rule.

Finally, even were we to assume that something more ambitious is intended, there is a non-trivial challenge in explaining how “the people” of a given territory constitute a legal personality capable of acquiring and holding legal rights of ownership in the first place. This difficulty is compounded in states where the notion of “the people” is contested or otherwise inchoate, particularly in post-colonial settings and in states with minority indigenous populations that exercise rights of self-governance. One solution, of course, is to simply vest the property right in the state, thus avoiding the problem of defining “the people.” But this solution comes at the cost of explaining why any state transfers of resources would be illegitimate, bringing us full-circle back to popular ownership as an assertion of a state’s territorial sovereignty.

In short, popular ownership, understood as a limitation on the state’s exercise of its powers over its territorial resources, is neither a widely accepted nor a well-established legal principle. It cannot simply be assumed to describe the legal relationship between the people who occupy a territory and the state with respect to the resources within that territory or to define the duties of governments. It requires both a defence and a more precise articulation of the obligations that it entails. If Wenar’s proposed solution to the resource curse is to succeed, he must therefore: (1) establish some normative basis for popular ownership and explain what it entails, and (2) show that the set of legal rules that popular ownership entails are both desirable and capable of implementation.

V. Resource justice as a problem of “property”?

Perhaps what the foregoing reveals is only that Wenar’s proposal is even more theoretically modest than imagined. There are, after all, important pragmatic reasons why one might be drawn to a property-based approach even if it isn’t accurate to say that territorial resources are owned (in the legal sense) by the people who occupy that political territory. Namely, property presents a more straightforward way of convincing global leaders to take action. As Wenar puts it, “[t]he idea that the natural resources of a country belong to the people of that country is so intuitive that most will need no more proof than its statement.”^{Footnote 38}

There is no doubt that much of the appeal of Wenar’s proposal comes from its simplicity: dictators who sell off their country’s resources and keep the wealth for themselves are stealing from the people; and the countries that purchase those resources are receiving stolen goods. “Owning” and “stealing” appeal to basic lay-notions of right and wrong. Distributive justice-based critiques of the global trade in resources, by contrast, often seem too complicated and abstract to rally public support or to otherwise persuade those in a position to do something about the problem to take action. Moreover, they provide no widely agreed-upon solutions.

This strategic point is not implausible. Even so, I take it that Wenar’s point is meant to be a theoretical one. His suggestion is not simply that the rhetoric of property is useful but that property represents a distinct way of thinking about the relationship of a people to territorial resources, and correspondingly the duties of governments, and that this presents an important alternative to distributive justice.

It is this theoretical suggestion that I propose to examine. Although Wenar is incorrect to assume that popular ownership is an uncontroversial and well-established legal rule, he is correct, in my view, to insist that the resource curse is not simply a problem of distributive justice but also a problem of property. Political philosophers have not adequately appreciated this idea and, unfortunately, Wenar doesn’t do a good job of explaining what it means. To appreciate its potential importance for philosophical analysis in this area, it is imperative to see how, at the most basic level, distributive justice and property capture different aspects of a given problem of resource justice.

Distributive justice concerns the allocation of benefits associated with a particular physical asset: typically income or wealth. Property concerns the use and control of the physical assets themselves. Thus, in the context of matters concerning the exploitation and sale of natural resources, considerations of distributive justice address the problem of who should get the proceeds from the sale of resources and how the shares should be divided, whereas considerations of property address the problem of whether the trade in those resources should occur at all and, if so, how resource development activities should be managed. While resource exploitation implicates both, and no solution to any problem of resource justice is complete without both, they are nevertheless distinct concerns. So, for instance, the distribution of the proceeds of a sale of resources could be just while violating property rights. Similarly, a sale of resources could respect property rights even while the proceeds of that sale are illegitimately distributed.

To make this distinction more concrete, let us imagine a proposal to harvest timber from an ancient forest, which is located on a mix of public and privately owned land. Let us suppose that the forest, in virtue of its age, is rich in biological diversity, containing many plant and animal species that cannot be found elsewhere. Let us further suppose that it has played a formative role in the way of life of the people who live there, who appreciate its natural beauty as well as the tourism it attracts. Their understanding of community is informed by a shared sense that they are stewards of the forest and guardians of its plant and animal species; indeed, the government park authority, which oversees activities on the public forestlands, has been staffed almost entirely by community members since its inception. In addition, the forest has a special significance for local indigenous peoples, for whom the forestlands are also a spiritual home. Finally, community members overwhelmingly depend on tourism related business for their livelihood; they have owned and operated most of these businesses (e.g., tour companies, guest houses, food stores and the like) for several generations, since visitors started coming to the forest.

From the perspective of distributive justice, the principal question that the proposed timber harvest presents is how the profits from the sale of the timber should be allocated. If the timber is harvested from public land, is it up to the government to allocate the profits however it sees fit, or must it give priority to certain groups? In particular, should the local population have a special claim to some of those profits—for example, by way of compensating for losses they incur? If so, which losses require compensation? Moreover, can the state retain the profits solely for the benefit of the citizens within its territorial jurisdiction, or does it owe duties to share the profits with outsiders who have the misfortune of being born in resource poor countries? If the timber is harvested from privately owned land, are the owners of the land entitled to keep the profits to themselves or should they be taxed? If so, should the profits be subject to ordinary income taxation, or should private owners of forestland incur a resource rent tax when they harvest timber? And, again, should the allocation of the tax revenues favour the local population? This is a familiar set of questions from the philosophical literature on resource justice.

From the perspective of property, however, a quite different set of questions arises. Most pertinently: should ownership of this kind of forestland, whether by a public authority or a private person, include the right to harvest timber at all? And if so, on what terms or conditions can it be harvested? That is, can all of the timber be harvested from the land, and can it be harvested in any manner that those undertaking the work see fit? Or, if it must be harvested in a more limited way, what are those limitations? This set of questions bears on issues concerning the control of the physical asset, the forestland, including whether title should be exclusively in public hands, or whether a mix of private and public ownership is desirable. Moreover, it bears on issues concerning the particular entitlements and obligations that should inhere in the title, including questions of alienability, and the severability of resource interests (including the timber) from the title. To be sure, the allocation of income or wealth may well be among the considerations that point in favour of a particular set of entitlements and obligations. The point is that they are clearly not the only considerations in play.

For instance, many jurisdictions strictly forbid exploiting resources on land with special cultural or ecological significance. This can be achieved through legislation that makes certain kinds of development impermissible, including both environmental law and ordinary land use controls such as zoning. Moreover, some jurisdictions choose to abolish private ownership of certain kinds of land altogether (e.g., by compulsory acquisition through eminent domain and creation of a public land trust). On the other hand, most jurisdictions also recognize the need to strike a balance between socioeconomic, environmental, and cultural values, and thus allow resource development in more limited ways—even on sensitive lands—by regulating how, when, and by whom resources can be exploited. For example, states have widely adopted environmental impact assessment legislation,^{Footnote 39} and many have also subjected certain lands to international scrutiny under the UNESCO World Heritage scheme.^{Footnote 40} These kinds of legal instruments function as ex ante regulatory controls on resource exploitation. Before proposed resource development activities can proceed, such instruments require (in broad terms) that socioeconomic, environmental and cultural factors be evaluated; that forms of community consultation be undertaken; and that mitigating measures be adopted.

The purpose of considering this example has been to illustrate the difference between the kinds of considerations that arise under a distributive justice perspective and those that arise under a property-based perspective. Notice that, as presented here, property encompasses a more diverse set of concerns than the concerns that are found in the consent-based view. On the consent-based view, property concerns rights of exclusion and immunity from interference. As a consequence, property is a source of tension with the concerns of distributive justice; for, it is difficult to argue that taxation (whether in the form of a global resource tax on states, or in the form of a tax on private owners) does not interfere with the power of property owners to control their property. By contrast, the property-based concerns presented here are not incompatible with the concerns of distributive justice. They are just different concerns.

We are now in a position to appreciate some reasons why it might be important to keep these aspects of a given resource justice problem distinct. On the one hand, we might want to resist the idea that there is no further issue of resource justice beyond respecting property rights. That is, of course, the conceit of the consent-based view. On the other hand, we might also want to resist an idea implicit in the pure allocative view—implicit, at least, in how that view is often presented—which is the idea that resource justice is exhausted by an equitable distribution of the material wealth that resources generate. In particular, this might be resisted because there are aspects of a people’s relationship to the land and physical environment they occupy that require consideration but which simply cannot be captured by considerations of distributive justice, as the timber harvesting example suggests.

VI. Evaluation: does the proposal succeed?

With the above distinction in mind, the question is whether Wenar has made a compelling case for the view that property is a distinct aspect of resource justice. This requires examining his proposal in a bit more detail. Despite attempting to remain non-committal about the theory of property underlying the popular ownership principle, I will show that Wenar’s analysis of the resource curse in fact has a consent-based orientation. This poses significant difficulties for the view, I argue, because it prevents him from deploying property law to any real advantage. My argument is twofold: I demonstrate that the view, despite claiming to offer a property-based approach, has very little to do with property law; simultaneously, I demonstrate some advantages that taking considerations of property seriously would have.

VII. Diagnosis: where does the proposal go wrong?

Wenar does not address this set of objections. He appears to be more concerned with showing why a property-based approach is neither inconsistent with other human rights priorities nor overly ambitious.^{Footnote 58} This is understandable, given the significant resistance that a property-based approach to questions of resource justice is likely to encounter. However, it is not sufficient to address the challenge outlined above: Wenar does not explain the specific sense in which resource injustice can be viewed as a problem of property. Because popular ownership is conceptualized in a consent-based manner, the right to exclude others and the prohibition on non-consensual interference are its most salient features. Accordingly, “popular ownership” functions as a placeholder for the conditions of popular consent: basic civil and political liberties, democratic governance and the rule of law. Yet, if institutional conditions are more central to resource justice than property rules, then why not focus directly on institutional conditions?

Many liberals would be happy to accept this conclusion, having suspected all along that civil and political rights—not property rights—are the key to rectifying resource injustices.^{Footnote 59} My own view is that Wenar’s basic intuition is correct, but under-theorized.

Considerations of property form an independent basis for evaluating resource management practices. Property draws our attention to aspects of the relationships formed between people, land and resources that have generally not received adequate attention in the philosophical literature, such as the role that human interaction with the physical environment plays in sustaining community and culture. Focusing exclusively on considerations of distributive justice leads to an incomplete view of the demands of resource justice because distributive justice singles out only one aspect of those relationships, namely, who should profit from the exploitation and sale of resources. In circumstances where different aspects of those relationships are at stake, such as cultural continuity or environmental health, a response that focuses on the allocation of profits from the exploitation and sale of resources is at best remedial: a response to an injury after the fact, which may not adequately compensate for losses. At worst, it simply misconceives the nature of the interests and values at stake.

It is important not to overstate this claim. A property-based approach is not meant to displace considerations of distributive justice. Indeed, in some cases, all that resource justice might require is that others have a share in the wealth generated from the exploitation of a particular resource. Nevertheless, it seems important to leave open the possibility that resource justice requires some limitations on the ability of owners (public or private) to exploit natural resources beyond the requirement that others share in their profits, or even the possibility that the exploitation of certain resources is impermissible. Capturing these dimensions of problems of resource justice is what property adds that cannot be captured by considerations of distributive justice alone.

The two predominant views of property in the philosophical literature are not well equipped to deploy property law in this manner, however. There are two problems with both views. Appreciating these problems helps explain where Wenar’s proposal goes wrong, and it also provides some guidance for political philosophers who are interested in taking considerations of property seriously.

The first problem is that the consent-based view and the pure allocative view both see distributive justice and property as conflicting and mutually exclusive approaches to tackling a particular resource justice problem, when they should be viewed as complementary. As a result, both views are mistaken about the appropriate place of property in analysing questions of resource justice. Consent-based views promise too much from property, and in doing so deliver very little. “Enforcing property rights” is a placeholder for a range of considerations that may or may not have anything to do with property. Pure allocative views expect nothing, and in doing so overlook significant issues concerning the use and control of physical assets that cannot be addressed through the allocation of income and wealth but which could be addressed through property rules.

The second and related problem is that they are too myopic in their view of the values that property serves. Whereas the consent-based view is overly focused on exclusion, the pure allocative view is overly focused on instrumental value, and in particular material wealth. As a result, there are a range of values that property rules can serve that seem significant to analysing and rectifying issues of resource justice that neither view adequately addresses. Perhaps most pertinently in this context, there are pressing environmental, and sociocultural questions about which resources are exploitable, how, when, and by whom.

Wenar’s proposal comes up short, then, not because he is mistaken to view resource injustice as a problem of property. It comes up short because he fails to articulate what property’s functions are beyond regulating exclusion through consent, a consequence of his consent-based characterization of popular ownership. Moreover, the specific manner in which that consent-based criterion is formulated, with its focus on institutional conditions, makes it difficult to see what advantage a property-based approach has over a distributive justice approach. The view fails to account for the sense in which a territory “belongs to” a people such that popular ownership entails any specific government obligations concerning the management of land and resources. Indeed, the relationship described is not really a property right at all.

VIII. Conclusion: the use of legal concepts in political philosophy and the precarious status of “property”

Many liberal political philosophers have been reluctant to suggest that property is an independent consideration in analysing problems of justice. This is understandable when proposals for property-based criteria of justice have so often been presented as if they are incompatible with the broader concerns of egalitarian political philosophy. A critical insight of Wenar’s proposal is therefore to suggest that a legal understanding of property could be put in the service of political philosophy in order to simultaneously resist the idea that considerations of property are reducible to the concerns of distributive justice, while ultimately avoiding some of the problems that property-based approaches are typically thought to have. Although Wenar does not succeed in demonstrating what property adds that cannot be captured by a standard distributive justice framework, his proposal merits greater theoretical attention than it has so far received for drawing attention to some significant shortcomings in current philosophical approaches to questions of resource justice, and also for what it suggests about rethinking the division of labour between legal theory and political philosophy.

I have argued that property is a distinctive aspect of resource justice, and that political philosophers both can and ought to give independent weight to property rules in the analysis of questions of resource justice, a move that does not require abandoning commitments to distributive justice. In particular, I have suggested that injuries that cannot be redressed by (or that are otherwise inadequately captured by) compensation, such as environmental, social and cultural harms, would be better handled through property rules. However, these are only meant to illustrate some of the advantages of a property-based approach, and not to be an exhaustive list of circumstances where it would be worthwhile to treat property as a distinct set of considerations. In general, it can be said that the utility of engaging in an analysis of property rules lies in bringing out aspects of human relationships with the physical environment that cannot be adequately evaluated through a purely instrumental view of land and resources, or that cannot be adequately responded to through mechanisms of wealth allocation. This may well extend to other circumstances not considered here.

Despite his important provocation to liberal political philosophers, my concern with Wenar’s proposal is that the legal concept of property is not deployed to this end, but is instead deployed to sidestep thorny normative debates in this area. One debate that comes to mind is the debate about territorial resource rights, or how to define “the people” to whom a particular resource belongs, a set of questions that has long divided the global justice literature and that Wenar does not engage. Resource justice requires a way to adjudicate disputes between different groups, or subsets of “the people,” and their distinct claims with respect to land and resources. In the context of global trade, it also requires a way to address the demands of other peoples. At present, however, there is no firmly established legal principle which entails that the resources in a given jurisdiction are owned by “the people” in the sense that Wenar has in mind.

The terms of that debate must therefore be confronted head on. To effectively analyse the global trade of resources as a problem of property, one must provide an account of the relationship between a people and the land and resources in the particular political territory that they occupy, and demonstrate both how that relationship gives rise to specific duties on the part of government and how those duties can be enforced by its citizens. This work can be usefully guided by the consideration of legal rules, including the law of property, but legal rules do not provide a way around it.

I would like to conclude by considering some of the broader implications that this has for the use of legal concepts to analyse problems in political philosophy, and how this bears on the concept of “property” in particular. There is an important cautionary lesson here for political philosophers who would like to avail themselves of legal concepts to inform normative debates. Law has its own logic, which is generated through practical experience and guided by concrete problems that must be understood and ultimately resolved within the limited (and indeed sometimes quite limiting) frame of legal institutions. Philosophy often divides up the conceptual landscape of a particular subject or set of issues in a very different way from law because it lacks the same experiential, problem-driven register and is not encumbered by the same institutional constraints.

Although these differences between the two disciplines have traditionally been thought to give priority to philosophical approaches in theorizing social problems, methodological divides and constraints produced by schools of thought within philosophy itself increasingly suggest that this priority might be reversed, at least in the context of certain social problems. Thus, when properly deployed, law has the potential to provide a conceptual framework that sheds light on issues that have fallen beyond the purview of philosophical approaches. Legal theory may therefore play not only a critical role in pointing out where philosophical approaches generate prescriptions that are incapable of real-world implementation, but a substantive role in analysing what is at stake in a given social problem and how we might respond.

This more ambitious role for law in philosophical analysis contains greater risks for cross-disciplinary misunderstanding, however. The key difficulty is that philosophers’ expectations about a given legal concept are typically informed by the operation of an analogous philosophical concept, when the latter may in fact perform very different functions from its legal counterpart. For this kind of interdisciplinary engagement to be successful, it is imperative that the legal concept in play be understood on its own terms: it cannot simply be imported into a philosophical debate divorced from an understanding of how that concept operates in the context of legal institutions.

This explains the precarious status of “property” in political philosophy, where the dominant philosophical understandings remain somewhat disconnected from the legal reality of property rules. This disconnect has not prevented legal understandings of property from serving as an important mode of critique of philosophical projects that purport to put property rights in the service of a substantive moral or political view, as the influential work of Barbara Fried, Liam Murphy and Thomas Nagel demonstrates.^{Footnote 60} To the extent that such projects advance prescriptive views about what the law ought to be, or how legal institutions ought to be reconfigured to reflect certain normative commitments, legal theorists and legally-minded philosophers have been successful in drawing attention to improbable assumptions being made about how the relevant legal rules and institutions do in fact operate.

Unfortunately, however, the disconnect between the dominant philosophical views of property, on the one hand, and property as a legal concept, on the other, has been a “curse” for the more ambitious project. As I have demonstrated in this paper, the gap between philosophical and legal understandings of property presents a significant obstacle for appreciating what an analysis of property could add to current distributive justice approaches. For that reason, the legal concept of property is unlikely to play more than a critical role until the dominant philosophical understandings of the place of property in a theory of justice are questioned and revised. By demonstrating how considerations of property could usefully inform the philosophical analysis of issues concerning the management of land and other natural resources, my hope is to have shown that this initiative is worthy of pursuit.