I. Introduction
The aim of this essay is to propose a new way of thinking about the justification of the right to private property. The proposal builds on old and familiar ways, but goes beyond them.Footnote 1
I begin with some assumptions. The first is that the starting-point of the justification is where we presently are. The “we” are those living in contemporary Western democracies. There is a not very long list of political goods we agree about valuing: among them are education, justice, liberty, order, peace, prosperity, public health, security, and stability. Private property is also one of them. I am assuming that a justification of the right to private property must explain why it is reasonable to value it both in itself and in relation to the other political goods. This starting-point may seem too obvious to require mention, but it is routinely denied by political thinkers situated all along the left-right spectrum.
Some of those who deny it start with a semihistorical account of the origin of private property in the mist of prehistory.Footnote 2 One reason against this approach is that there is no credible evidence that the account is true to anything resembling what has really occurred. Moreover, even if the account were true, it would have no more bearing on the justification of the right to private property here and now than an account of the origin of magic would have on its justification here and now.
Another alternative is to start with a theory about what an ideal society would be like and then justify or criticize the right to private property from its point of view. The problem with this approach is that ideal theorists are led by their political predilections—I do not say prejudices—to choose one (or perhaps a small number) of the many goods we value, and then ascribe overriding importance to it (or to them). Then they make the justification of the right to private property depend on the supposedly overriding good(s). Ronald Dworkin does this with equality, John Rawls with justice, Robert Nozick with rights, Friedrich Hayek with liberty, and there are, of course, others as well. I will return to both the semihistorical and the ideal-theorizing approaches later, but only to claim that both are vitiated by arbitrariness.
Yet another possibility is to start with the idea of self-ownership and then gradually extend it to include property as it is usually understood. The reason against this strategy is that the sense in which we have a self is very different from the sense in which we may have a house. We and the property we own are contingently connected: we can sell, loan, bequeath, give away, or forfeit our property, but we cannot do this with our self. We are connected to the self we have necessarily, not contingently. This is radically different from what is normally meant by owning something. The self we have cannot be nationalized or expropriated, and there is no law needed to guarantee that no one will steal the self we have. We have many things we do not own, such as a good marriage, a bad temper, or a passion for Bach, and our self is another. Of course, political thinkers are free to stipulate any meaning they like, but it is highly misleading to claim that having a self is like owning a material object, or vice versa.
A further approach is to begin with the claim that we have a natural right to own property. I find the idea of a natural right to anything as problematic as the idea of self-ownership. What seems to be meant by “natural right” is that we have some basic needs, for food and rest for instance, and their satisfaction is a minimum condition of our well-being. Natural rights, then, are the rights of individuals to pursue such satisfactions, and the rights impose a corresponding obligation on others not to interfere with individuals as they try to satisfy their basic needs.
I agree that the satisfaction of some needs is a minimum condition of individual well-being, that it is good to satisfy these needs, and that it is bad to prevent others from satisfying their basic needs. I also agree that basic needs derive from the nature we share with other members of our species. If this were all that is meant by natural rights, I would not find the idea problematic. But defenders of the idea mean more. They mean that we are entitled at least to noninterference with our natural rights. I can make sense of this only on the assumption that we live in a society whose laws, conventions, or customs create our entitlement. I fail to see how anyone would be entitled to anything outside of one society or another. Nothing entitles a chimpanzee to be free of interference with his food or rest by other chimpanzees. There are rights, of course, but they are conventional, not natural in the sense that defenders of natural rights intend.
It makes matters worse that even if there were natural rights, the right to private property would not be one of them. For the individual ownership of private property is not a basic need whose satisfaction is a minimum condition of well-being. Basic needs could be satisfied even if all property were owned by the state, or by benevolent people, or jointly by a community. Beggars, spongers, mendicant friars, ascetic hermits, monks, and nuns who took an oath of poverty have been enabled by the kindness of others to satisfy their basic needs even though they forswore the ownership of private property.
Moreover, the right of individuals to own property is conditional, because there are legal and moral limits on what individuals may do to obtain the satisfaction of their needs, and because there are legally and morally justifiable interferences with the pursuit of such satisfaction. These limits and justified interferences depend on prevailing conventions, which are historically conditioned and changeable. And that is part of the reason why all rights are conventional and conditional.Footnote 3
I will start, then, with where we are, with the plurality of political goods we value. The right to private property is one among them. I am assuming that this right is conventional, conditional, and defeasible: conventional, because it is defined by conventions; conditional, because it depends on changing conditions; and defeasible, because it may conflict with other political goods we value and such conflicts may be reasonably resolved in a particular context in favor of a political good other than the right to private property. I am assuming further that just as there is a plurality of political goods, there is a plurality of reasonable political principles, theories, and ideals. This plurality is quite extensive. It is also nonhierarchical, because the political goods, principles, theories, and ideals can be and often are ranked in a plurality of reasonable ways.
The core idea of property is the ownership of some material object, such as a car or a violin. But the idea is often extended to include money, patents, undeveloped resources, shares, future payments, abilities, options, ideas, reputation, and so forth. I will restrict the discussion of property to a relatively narrow sense, to include only material objects and money. The issue of justification is difficult enough, and I want to avoid complications that follow from a consideration of intangible possessions. If the justification works, it may be extended beyond the narrow sense.
It is also necessary to distinguish between possessions and property. I may possess a car, because I stole it or bought it from someone who stole it. It is in my possession, but it is not my property, because I came to possess it illegally. Property is legal possession. Furthermore, property need not be owned by an individual. It may be owned jointly by several people; or by some collectivity, such as a cooperative, a church, or a labor union; or by a state, as are roads or parks. The justification of the right to private property, the property of an individual, must do more, therefore, than justify the right to property. It may be that a collectivity or a state has a right to property, but individuals do not. My concern, then, is with the justification of the right to the legal possession of private property.Footnote 4
But what precisely is the right to private property a right to? I think it is the right to possess and use material resources within legally defined limits. Each constituent of this right—possession, use, and limits—is in turn constituted by several more specific rights. The right to private property, therefore, is a bundle of rights, not a single one.Footnote 5 The more specific rights that constitute the constituents of the bundle typically vary with societies, legal systems, and changes in specific laws. Reference to the right to private property, then, is nothing more than a convenient shorthand. Two societies may each be committed to the right of private property and yet interpret the right quite differently.
The right to possess private property includes having exclusive physical control of it; deriving income from it; holding it without any time limit; having legal protection against its expropriation, theft, or unwanted destruction; and so forth. The right to use it includes deciding whether, how, or when to use it; permitting others to use it; consuming, modifying, or destroying it; selling, exchanging, bequeathing, or giving it away as a gift; and so forth. And the limits include not having acquired it in a legally impermissible way, and using it in ways that do not harm others.
Given this understanding of the right to private property, I turn to the question of why we regard it as important. Countless ascetic people throughout history have renounced property as a means to their well-being. And even if owning some property were necessary for an acceptable life, it may be owned by a state or a collectivity, not by individuals privately. Yet we think of the right to private property as being more like the rights to liberty or the pursuit of happiness—rights that really matter—than like unimportant rights such as solving crossword puzzles or showering in the afternoon. Furthermore, the importance we attribute to private property may be a symptom of greed or selfishness, or of a now useless instinct instilled in us in the course of evolution. That we regard private property as important is not enough to show that it really is important. We have been wrong in the past about the importance of magic, the divine right of kings, or not sparing the rod in the upbringing of children. Maybe we are wrong about private property as well. I will now give reasons for thinking that we are not mistaken about the importance we attribute to it.
II. The Importance of Private Property
The importance of private property is that it enables us to control how we live. A good society must be committed to the protection of the right to private property, because a society is made good by protecting the conditions on which the well-being of its members depends. Moreover, I am supposing that having control of one's life is one of these conditions. Private property, according to this view, is an indispensable means of control.
By control I mean directing how one lives. This is done by forming intentions, having the opportunity to carry them out, and then doing so. The intention needed for control must be uncoerced by external pressures or internal compulsions that are either irresistible or unacceptably costly to resist. The opportunity to carry out intentions depends on favorable external conditions, such as order, prosperity, peace, and so forth, and on possessing the necessary resources. The resulting action must be judged by the agent as an acceptable way of achieving the intended result. Private property is a necessary part of this process, because it provides the needed resources.
By control, therefore, I do not mean domination. Control does not involve lording it over others, imposing one's will on the political system of one's society, or being obsessed with the minute details of daily life. To control one's life is to be one's own master, not to be at the mercy of the will or kindness of others, not to depend on the state or some collectivity for the necessary resources, to make decisions for oneself, and to live with the consequences. Private property is a means to this kind of control, because the intentions we form, the opportunities we seek, and the activities we engage in are centrally concerned with the satisfaction of our needs.
Some of these needs, as we have seen, are the primary needs of subsistence. Their satisfaction is a minimum condition of our well-being, but, of course, we have many different needs beyond subsistence. Among them are the needs for psychological and financial security; relief from drudgery; interesting and rewarding work; a good marriage; and possessing the tools of one's trade, such as a first-rate instrument for a concert violinist, books for a scholar, a well-lit studio for a painter, a good stove for a chef, or reliable equipment for a rock climber. In addition, we need some privacy and enjoyable distraction from work; we need a car to travel to work and to shop, decent housing to live in, a computer to keep records and communicate with others; and so forth. I will refer to these needs jointly as secondary.
Primary and secondary needs are alike in that their satisfaction is a requirement of our well-being, but they also differ because all human beings have the same primary needs, whereas we differ in what secondary needs we have. The prolonged frustration of any of our primary needs is incompatible with well-being, but this is not so with respect to secondary needs. Only the frustration of many of our most important secondary needs makes well-being impossible. Calling these needs “primary” and “secondary” is not intended to suggest that the former are more important than the latter. Soul-destroying work, being prevented from pursuing our chosen profession, an unhappy marriage, or prolonged insecurity are as incompatible with well-being as starvation or sleeplessness. The satisfaction of both primary and secondary needs is essential for our well-being, but we can satisfy them only if we have the required resources, and that is why the right to private property is indispensable for controlling how we live.
If we think of the right to private property as the right to means of control, then doubts about its importance can be seen as groundless. I have no idea whether the importance we attribute to it is based on an instinct. But if we suppose that it is, any doubt about its continued usefulness in the contemporary world is obviously misplaced. Our well-being depends as much on our resources as the Cro-Magnon men's did. The difference between us is only in the kind of resources we need.
As to the charge that the importance we attribute to the right to private property is a symptom of greed, it clearly is so for some people who are obsessed with possessions. Equally clearly, however, it is not so for numerous others who want just as much as they need for controlling how they live, with a little extra, perhaps, as a margin of safety. Nor need the importance we attribute to the right be a symptom of selfishness. We may use our resources to acquire a skill that will benefit others, to improve the life of our family, to support a worthy cause, to invest in the business of others, and, of course, to pay taxes, a considerable portion of which funds welfare programs. Recognizing the importance of the right to private property, therefore, may be a symptom of public spirit, love, or business acumen, not just of selfishness. The importance we attribute to it is often a symptom of prudence, which used to be regarded as a virtue, and not of greed or selfishness, which a defender of the right to private property can readily acknowledge as a vice.
But what about those saintly or fanatical ascetics who enjoy what they insist is well-being, even though they refuse to own property? That they can do so is clear, since they have done it. What they cannot do is to live without resources. If they survive, it is because they depend on other people who share their resources with them out of the goodness of their heart, which may or may not be misguided. The ascetics' refusal to own private property no more calls into question the importance owning it has for others than the renunciation of sex by celibates casts doubt on its importance for those who are otherwise inclined.
There still remains the point that recognizing the importance of property for well-being is not the same as recognizing the importance of private property for well-being, because property may be owned by a collectivity or by the state. Why should the private ownership of property be important? Because it allows us to control how we live, whereas collective or state ownership would take control from us and transfer it to others. If this happened, forming and executing intentions would no longer be up to us, but become subject to the approval or disapproval of those who distribute the resources we need. This would be a morally unacceptable interference with liberty and would destroy our well-being, since no one acting on behalf of a collectivity or a state could possibly know nearly as well as we ourselves do what secondary needs we have and what would be an adequate satisfaction of them. No society committed to the well-being of its members could be in favor of depriving them of the control of how they live. Since that control depends on the right to private property, collective or state ownership is not a viable option, as we know from the dismal failure of all Communist regimes.
The reasons against collective or state ownership are not reasons against a society's limiting in various ways the right to possess and use private property. There is obviously need for such limits, because a society must coordinate its members' efforts to control their own lives. Appropriate limits make it illegitimate to possess and use material resources in ways that prevent others from doing the same. The scarcity of resources necessitates additional limits, because resources often have to be competed for and this has the unavoidable consequence that the resource acquisition of one person prevents the acquisition of others. The terms of legitimate competition must be set, and this further limits what individuals can do to obtain and use the resources they need to control how they live. We inevitably chafe under such limits, but if they are reasonable and no more extensive than what is needed to make the possession and use of private property secure, then we should recognize their necessity and stay within them.
It may be thought that the just-completed explanation of the importance of the right to private property is also an adequate justification of it. This would be a mistake, because the explanation tacitly presupposes one or another much too simple and far too problematic justification, as I will now proceed to show. These justifications will be familiar to those who have thought seriously about the right to private property. I will not examine them in detail, because what I find problematic are not the details, but the justifications' overall strategy. I will state the justifications briefly and explain why I believe that they do not yield the needed support for the right to private property. These proffered justifications are based on interest, entitlement, and utility.
III. Interest-Based Justifications and Their Problems
Interest-based justifications proceed in the following way.Footnote 6 Human beings have needs, and it is in their interest to satisfy them. Doing so depends on having the necessary resources and on being able to use them as they see fit. The right to private property is the right to have and control the use of resources individuals require for satisfying their needs. The justification of this right is that it serves everyone's interest. Since a good society must protect its members' well-being, and since the right to private property is essential for their well-being, a good society will provide legal protection for that right.
There are two serious problems with this attempted justification. The first is a consequence of human fallibility. Individuals may be wrong to have a need they rightly feel they have (e.g., for murdering rivals); or they may feel a need they in fact do not have (e.g., hypochondriacs for medical treatment); or they may not feel a need they should feel (e.g., the ignorant for education). Individual well-being, therefore, does not depend on satisfying the needs people feel they have, but on satisfying the needs they really have. If the justification of the right to private property is the interest of individuals, then a good society will not leave it to the discretion of individuals to control the use of their resources, since they may use them contrary to their interests. Why should a good society protect the rights of individuals to misuse scarce resources? Much more needs to be said, therefore, to justify the right to private property than merely that it enables individuals to satisfy their needs. But the more that is said, the less control will be left to individuals, and the more tenuous the right will become. A good society, therefore, may well conclude that the collective or state ownership of property better serves the interests of its members than private ownership, or that there are often good reasons for interfering with the right to private property. And this conclusion, of course, shows the failure of the interest-based justification.
The second problem is that this justification assumes that the required resources are available and the problem is only who should control them. But this assumption is false. The resources have to be produced before they can be controlled. If their control is left to the discretion of those who produce them, then, given the ever-present scarcity of resources and the partiality of the producers, many people will lack the resources they need. If the control of resources is taken from those who produce them, why would reasonable people produce them?
Neither problem is unsolvable, of course. My point in calling attention to them is to show that much more is required for solving them than a simple appeal to needs and to the importance of satisfying them. For needs and satisfactions must be limited, and setting reasonable limits unavoidably appeals to considerations other than the judgments of individuals about their needs and interests. There are complex moral, economic, legal, and psychological issues that must be considered, and their respective importance must be weighed in order to decide what limits are reasonable. The interest-based justification of the right to private property is much too simple for that. It founders on the problem of limits.
IV. Entitlement-Based Justifications and Their Problems
The entitlement-based justification of the right to private property has several versions, distinguished mainly by what they base entitlement on. According to the earliest version, individuals are entitled to a piece of property if they mix their labor with a generally available resource and if, after they have done so, enough is left of the resource for others to do likewise if they wish.Footnote 7 Those who acquire the right to a piece of property in this manner can sell, exchange, or bequeath it. Other people, then, may acquire a right to it if they receive it from the original owner by one of these means.
This justification has great intuitive appeal, because it leads us to think of the well-deserved rewards of hard work and skill. If out of driftwood I found lying on a beach I build a beautiful table, who but I would have a right to it? And if I decide to give it as a birthday present to my daughter, then who but she could claim to have a right to it? There is no doubt that this justification holds good in some cases, but a little thought shows that it does not hold in many others. To begin with, it is virtually impossible to trace the chain of ownership back to the original acquisition of, say, a piece of land. Moreover, if it is traced back as far as we are likely to be able to go in the undocumented past, we frequently find that it was acquired by dispossessing its earlier owner by force. Virtually all nations presently in existence began by killing or subjugating the native population. On an entitlement-based theory, then, no one can claim legitimate possession of any land presently owned in these nations.
Next, suppose I hire a person to build a house for me and he does. He mixes his labor with it, and he may do it very well, but he certainly does not acquire the right to the house. The house is mine, even though I have neither mixed my labor with it nor acquired it from someone who did so. The builder is entitled to payment for his labor, but not to anything more. Take another case. I buy a lottery ticket, win a sum of money, invest it in a mutual fund, and the money grows. I am clearly entitled to the proceeds, but I have done nothing remotely resembling mixing my labor with the money I won. For these reasons, among others, contemporary defenders of an entitlement-based justification tend to ignore the past and concentrate on present possession.Footnote 8
They also begin with intuitively appealing cases, such as Robert Nozick's Wilt Chamberlain example.Footnote 9 Chamberlain is a great basketball player, and people willingly pay again and again a lot of money to see him practice his artistry. He becomes wealthy and he is entitled to his wealth. He cheated no one, he delivered what people expected, everyone was better off, and no one was worse off. He has a right to do what he pleases with the money he has earned: he can spend it, invest it, give it away, leave it to his children, use it to support a cause he believes in, and so forth. Who could reasonably doubt that he has the right to possess and use what he has acquired in this way? A critic could.
A critic might say, to begin with, that the case has intuitive appeal only to those who share the conventions on which the case rests, but these conventions are deplorable, sharing them is a sign of corruption, and a society would be better off without them. One of these conventions is the commercialization of sports. It is a bad thing for a society, the critic might argue, that a great athlete like Wilt Chamberlain sells his talent for money. He does with basketball what prostitutes do with sex. Perhaps people should be allowed to pay money for either, but surely a society should not encourage it, and we should not model the right to private property on such dubious cases. And it is not just Wilt Chamberlain who demeans himself, the critic may say. Those who pay to watch him also do so, because by finding enjoyment in the passive observation of an endlessly repetitive activity, they betray a great vacuum in their inner lives.
Now my point is not that such a critic is right to condemn commercial sports. The point is that he is right to claim that the Wilt Chamberlain case rests on conventions it presupposes, but does not justify. This entitlement-based justification takes for granted the conventions involved in acquisition, but the acquisition of possessions in conformity with prevailing conventions does not by itself entitle people to what they possess. Two further cases will strengthen this point.
Following the collapse of Communism, many ex-Communist states privatized previously state-owned enterprises, which were expropriated from their legitimate owners when the Communists took power. After the collapse, laws governing privatization were enacted, the expropriated enterprises went up for sale, and anybody who had the money could bid for them. However, the only people who actually had the money were members of the Communist elite who expropriated the enterprises in the first place. Thus, the old discredited Communist elite transformed itself into the new super-rich capitalist elite. They acquired their new possessions in accordance with the recently established conventions. There is surely something wrong with these new conventions if they allowed such blatant injustice. No reasonable person could say that members of the Communist elite have a right to such possessions.
Take another case. Consider an ordinary person without any great talent. He earns a living doing a low-paying job and supports his wife and three young children. On his way home from work, he is killed in a freak accident for which no one could be blamed. His family is now destitute. Would a good society not be remiss in protecting the well-being of its members if it did not tax the earnings of the talented Wilt Chamberlain and use the funds to support those who through no fault of their own are destitute? The reason for doing so may be pity, fellow-feeling, or charity, but it need not be. It may simply be prudence; for destitution that follows from misfortune creates needs that must be satisfied in some way. If society does not help the destitute satisfy these needs, then crime is a natural option, and if there is a lot of it, the society will be destabilized, and the right to private property will be endangered. Once again, no reasonable person could say that the talented Wilt Chamberlain should not be taxed so as to avoid these consequences.
The problem with this entitlement-based justification is that the conventions that entitle people to their possessions need to be examined and justified. But they cannot be justified on the basis of entitlement, because that would simply assume that the conventions appealed to have been justified, and that, of course, is precisely what is in question. The justification of the conventions, therefore, must proceed in some other way. Regardless of what that way is, the need for it is a conclusive reason for thinking that the entitlement-based justification of private property is insufficient. People do not and should not have a right to all of their possessions. But to draw a reasonable distinction between possessions to which people ought to have a right and those to which they ought not is a complex question that cannot be settled by appealing to prevailing conventions. Perhaps the prevailing conventions should not prevail. The entitlement-based justification, therefore, is too simple to solve the problem of legitimate possession.
V. Utility-Based Justifications and Their Problems
Defenders of utility-based justifications postulate a good they take to be essential for human well-being and then argue that the protection of the right to private property is a necessary condition of the efficient pursuit of the postulated good. Versions of this justification differ, because different theorists postulate different goods. The version I will discuss here has liberty and prosperity as the goods.Footnote 10
The argument for this version has a constructive and a critical component. The constructive component aims to show that liberty is necessary for our well-being, because it enables us to decide how we want to live and allows us to choose without interference between the available alternatives. Liberty should be curtailed only to prevent interference with the liberty of others. The constructive component also aims to show that prosperity is similarly necessary, because it enlarges the scope of liberty and frees us from the necessity of providing what we need for subsistence. By protecting the right to private property, a society enables its members to create prosperity and produce the resources needed for the meaningful use of liberty. The critical component of the argument shows that collective or state ownership of property will not create the needed prosperity and that it leads to an unjustifiable restriction of liberty.
In my opinion, the utility-based justification is correct in both its constructive and its critical claims, but nevertheless falls short of providing an adequate justification of the right to private property. The fundamental reason for this is that, although it is undoubtedly true that liberty and prosperity are necessary for our well-being, it is also true that there are other goods necessary for our well-being. Liberty, prosperity, and these other goods routinely conflict, and there may be strong reasons for curtailing liberty and prosperity in order to secure the other goods. Some examples of the other necessary goods are education, justice, order, peace, public health, security, and stability.
One of the most obvious features of contemporary politics is that liberty can be used and prosperity can be pursued in ways detrimental to these other necessary goods. It is similarly obvious that protecting these other goods may require curtailing liberty and prosperity. Goods we rightly recognize as necessary for our well-being often conflict. The reasonable resolution of these conflicts is to balance the conflicting goods so as to have as much as possible of all the goods we need. It cannot be reasonably supposed that when liberty and prosperity conflict with one or more of these other necessary goods, then liberty and prosperity should always take precedence over them. The circumstances in which it is reasonable to curtail liberty and prosperity are those in which it is reasonable to curtail the right to private property.
What are these circumstances? They are, for example, those in which the right to private property is used in ways that endanger public health, such as the discharge of industrial waste into rivers, advertising cigarettes to adolescents, or selling unsafe cars. Other circumstances include instances when the right to private property threatens security, such as selling sophisticated weapon systems to terrorists, or using scarce resources needed for defense to produce more profitable luxury goods. Or when it undermines order, such as financing lawyers who specialize in securing the acquittal of criminals on technicalities, or publishing newspapers that malign public officials by spreading misleading innuendos about their private lives that skirt but skillfully avoid libel. Or when it puts stability at risk, as, for example, when it results in great inequalities between those who possess private property in abundance and those who barely have enough for subsistence. These examples, of course, can be multiplied.
Defenders of the utility-based justification may respond by acknowledging the necessity of these other goods for human well-being, but arguing that liberty and prosperity should still take precedence over them because these other goods can be pursued only by people who have the freedom to make choices and who have the necessary resources. And these are the conditions that liberty and prosperity provide. I think this response is correct, but it still fails to show either that liberty and prosperity should have precedence over the other goods when they conflict, or that the right to private property should not be curtailed. For just as the pursuit of other goods presupposes liberty and prosperity, so the pursuit of liberty and prosperity presupposes, among other things, education, justice, order, peace, public health, security, and stability.
In our complex contemporary circumstances, prosperity cannot be achieved without having a workforce that has at least basic skills, and liberty cannot be meaningfully pursued unless there is a general understanding of the alternatives among which we can choose. Both presuppose education. In an anarchic society, everyone is at risk, liberty is severely curtailed by the necessity of self-protection, and prosperity cannot be enjoyed, because no one's private property is safe. The liberty and prosperity we cherish are possible only because there is adequate order and security in our society. When we use our liberty to make choices, we make predictions about how the various alternatives open to us would be likely to affect us in the future, and in seeking prosperity we assume that what we acquire now we can continue to hold in the future. These predictions and assumptions presuppose stability. In the midst of war and epidemic, everyone's well-being depends on commandeering resources, providing necessary services, and severely restricting the liberty of choices about medical care and travel. Our present enjoyment of liberty and prosperity is possible only because public health is protected and peace is maintained.
These rather obvious observations make clear that the goods necessary for our well-being are interdependent and mutually presuppose and strengthen one another. The utility-based justification is correct to insist that the right to private property must be protected if we are to have a free and prosperous society. But it is mistaken in forgetting that the pursuit of these important goods conflicts with the pursuit of other important goods, that the reasonable resolution of such conflicts requires balancing the important goods, and that achieving a reasonable balance is possible only if we resign ourselves to having less liberty and prosperity than we would like in order to secure other important goods, albeit they too to a lesser extent than we would like. This is the problem of balancing goods, and the utility-based justification of the right to private property is too simple to cope with it.
VI. Complex Justification
I conclude that the attempted justifications of the right to private property based on interest, entitlement, and utility are inadequate. I say inadequate, not wrong, because they are right to stress the importance of the interest we all have in satisfying our needs, the importance of having resources to which we are entitled, and the importance of enjoying liberty and prosperity. They are also right to stress the importance of private property for all this. But they nevertheless fail to justify the right to private property, because they cannot cope with the problem of how to set reasonable limits to that right, how to identify legitimate possessions, and how to balance important goods. We need a complex justification for that. The one I will now propose and try to defend combines what I take to be right in the three simple justifications, overcomes their inadequacies, and replaces an assumption which they share (and which leads them astray) with a more realistic one. The upshot is that the right to private property can be justified, but its justification is much less philosophical, general, and theoretical and much more practical, concrete, and political than has been traditionally supposed.
The fundamental reason why the interest-, entitlement-, and utility-based justifications of the right to private property are too simple is that they share the assumption that there is some one thing—perhaps a canonical principle, or a conclusive theory, or a highest good—that makes the justification adequate. They disagree about what that thing is, but they agree that an adequate justification must be based it. The complex justification rejects this assumption for three reasons. One is that the right to private property is a bundle of rights and the components of the bundle need to be justified differently. These components are the possession, use, and limits of private property. The second reason is that the various rights to private property must be justified differently in different contexts. It is highly unlikely that property's justified possession, use, and limits would be the same in feudal, revolutionary, post-Communist, ex-colonial, tribal, impoverished, affluent, agrarian, industrial, authoritarian, and democratic societies. And the third reason is that an adequate justification must cope with the problems of setting reasonable limits, identifying legitimate possessions, and balancing goods. These problems, as we have seen, introduce serious complexities. I will proceed by showing how possessions, uses, and limits may be justified in our context, that is, in contemporary, affluent, industrial, and democratic societies.
The justification of the possession of private property begins with accepting much of the entitlement-based justification. Possession, as opposed to use within limits, is justified if a piece of private property has been acquired legitimately. The legitimacy of its acquisition depends on conformity to prevailing conventions. The problem with the entitlement-based justification is that it presupposes, but does not justify, the prevailing conventions, which, of course, may be unacceptable for numerous reasons. The complex justification, therefore, must do what the entitlement-based one fails to do. How, then, can the prevailing conventions be justified?
The first step is to remind ourselves of just how plausible at least some of these conventions are. Take those involved in agreements, for example. Two parties make a formal or informal agreement to the effect that one will do a job, lease an apartment, or sell a car, and the other will pay wages, rent, or the purchase price. The performance of the first creates an entitlement to a possession that the second should transfer to the first. Or consider conventions involved in relationships. Parents should finance the education of their children; married couples should share their resources; investors should get a share of the profit; executives should not run companies mainly for their own benefit. Such relationships create entitlements to what their explicit or implicit terms specify. A large part of these entitlements is constituted by the unspoken conventions in the background. These conventions are obvious and well-known to people of normal intelligence who live together in the context of a society. The obviousness of the conventions, however, may just show that they are customary and prevalent in the context, but not that they are justified.
The second step is to show what would justify them. My claim is that they are justified if they have become traditional, if people conform to them voluntarily, and if they are important for the well-being of those who conform to them. By traditional conventions I mean ones that have endured for a considerable length of time, measured in decades rather than months, and are so widely known as to be taken for granted by the vast majority of people in that context. In the appropriate situations, the majority of people naturally and spontaneously follow the conventions, and they rightly expect others to do the same. If this expectation is not met, and it may not be, then its violation is widely regarded as blameworthy or as requiring an excuse.
Traditional conventions may endure as a result of coercion that makes the failure to conform too costly for most people. One indication of voluntary conformity is that people conduct themselves according to the conventions in the absence of coercion. Another indication is that although there are political, legal, or social avenues for challenging and attempting to change the conventions, the avenues are not followed. A further indication is that even though people could leave the society in which the conventions prevail, they do not and they continue to follow them in appropriate circumstances. None of this requires a conscious, articulated approval of the conventions. Most people who conform to them voluntarily may do so without having given (or wanting to give) the matter serious thought. They bought the goods, so they pay for them. They made an agreement, so they stick to it. They borrowed a car, so they return it.
Voluntary conformity, however, may just indicate habit, indoctrination, or that it is easier to go with the current than to swim against it. There may be a good reason for such conformity, however, even if this reason is not uppermost in the minds of those who conform. The good reason is that by conforming to the traditional conventions, people can acquire and control the resources they require to satisfy their primary and secondary needs. The reason, then, why the conventions have become traditional and why people conform to them without being coerced is that their well-being depends on it. They do not question or feel the need to justify the conventions, because they can afford to take them for granted.
There is, of course, no society in which all prevailing conventions about the ownership of private property are in this happy state. Some of the conventions are routinely questioned, and then they need to be justified, reformed, or abandoned. This is what happened to primogeniture, to the custom of a husband controlling his wife's property, or to the practice of imprisoning those who have defaulted on a debt. And this is what may be happening in America now concerning inheritance and capital gains taxes, although the 2008 election and the financial crisis have made this unclear. In some cases, it may happen that most of a society's conventions are questioned and their justifications are found wanting. Then the society in which this happens is disintegrating, and it is on the brink of revolution, as France was in 1789 and Russia in 1917.
The essential point in the present context is that according to the complex justification, the possession of a piece of private property is legitimate if the property has been acquired in accordance with traditional conventions to which voluntary conformity continues to be widespread, because such conformity is rightly assumed to be a condition of the well-being of those who live together in a particular society. This justification resolves the problem of legitimate possession on which the entitlement-based justification foundered. But it is nowhere near the end of the matter, because it says nothing about the justified uses and limits of legitimately possessed private property.
I turn next to how the complex justification resolves a problem that arises in the context of the utility-based justification of the right to private property. That justification, it will be remembered, is that liberty and prosperity are important goods, because they are necessary for our well-being. They jointly require the protection of the right to private property, because it is the right to the resources that provide us with the means to control how we live. Making use of the right to private property, therefore, is one way in which we enjoy the advantages of liberty and prosperity.
The problem with this justification is not with any of its claims, which I think are correct, but with its failure to take into account other claims that are no less plausible. As we have seen, these other claims are made on behalf of goods other than liberty and prosperity that are also necessary for our well-being. Some of them are education, justice, order, peace, public health, security, and stability. The problem is that the enjoyment of these goods often requires limiting liberty and prosperity, and, with them, limiting the right to private property. We need to know what limits are reasonable and how to balance the conflicting claims of all the important goods we need for our well-being. In this way, the problems of balancing goods and setting reasonable limits to the claim of each good are closely connected.
It is clear, I hope, that it would not be a reasonable resolution of these problems to assume that one or two of these goods is always more important for our well-being than any of the others. For there are reasonable disagreements about the respective importance of acknowledged goods, and these disagreements should not just be ignored. There may be, and have been, numerous circumstances in which order (e.g., illegal immigration), public health (e.g., pollution), or security (e.g., terrorism), for instance, justified some restrictions of liberty and some decrease in prosperity. But if the problems cannot be reasonably resolved by attributing overriding importance to one of the goods we obviously need for our well-being, then how can they be resolved?
I propose the complex justification as a reasonable resolution of both problems together and as an improvement over the utility-based justification. This reasonable resolution depends on bearing in mind three considerations. First, the reasonable resolution of conflicts among important goods rarely involves an all-or-none decision. Usually it is a matter of deciding how much of each good we can have, so we will typically have to make a decision about the extent to which we can have one without endangering the other. The protection of security may require restricting liberty by requiring everyone to carry forgery-proof identification. Or the protection of public health may require stringent curbs on pollution, which will raise the cost of goods, and reduce prosperity. The decision, then, does not usually involve choosing one or the other, but deciding how much of each we should have.
Second, a reasonable resolution cannot be to decide once and for all which good or goods should have priority over the others. The avoidance of this arbitrariness does not mean that we could not or should not decide that one good is more important than another in a particular context. Arbitrariness enters only if we decide to maintain the same order of priority in other, not yet encountered, contexts. It may be that security is more important than liberty in a context where liberty is already extensive and the threats against security are serious. But if, in another context, liberty is already curtailed and the threats to security are negligible, then their priority should be reversed. Reasonable conflict-resolutions vary with contexts. They exclude only context-independent resolutions and acknowledge the necessity of assigning temporary priority to one of the conflicting goods in a particular context.
Third, at any given time in a society there are many goods whose necessity for well-being is generally recognized. These goods form a system, and the system of goods is always more important than any of the particular goods that jointly constitute it. Reasonable conflict-resolutions, therefore, have a standard to which they can appeal. This standard is the respective importance of the conflicting goods for the protection of the system of goods as a whole. Whether a particular conflict-resolution is reasonable does not, then, depend on which of the conflicting goods is more important for well-being in a particular context. It depends, rather, on deciding which of the conflicting goods is more important for the protection of the whole system of goods.
An approach to conflict-resolution that takes into account only the respective importance of the conflicting goods is bound to go wrong, because it fails to consider the effect of the resolution on the other goods that form the system. This is just what the utility-based justification failed to do. My proposed complex approach takes into account how the whole system of goods would be affected by a particular conflict-resolution. This approach is just as concerned with well-being as the utility-based one, but it recognizes that at any time, in any context, well-being depends on the protection of many goods, not just on one or two of them.
The complex justification, therefore, resolves the problems of finding a reasonable balance of goods and setting reasonable limits to the pursuit of goods in the same way: by appealing to the standard constituted by the system of goods. A reasonable balance is one that best protects the system of goods in a particular context, and a reasonable limit is one that restricts one, or perhaps both, of the goods in order to protect the system of goods. Liberty and prosperity, and with them the right to private property, may be reasonably limited if doing so is necessary for securing the other goods on which well-being also depends.
It may be objected that the complex justification does precisely what it criticizes the utility-based justification for doing: arbitrarily assigning priority to a particular good and resolving conflicts in its favor. But this objection rests on a misunderstanding of the standard to which the complex justification appeals. The standard is not a particular good, but all the goods forming a system. And the appeal to it is not arbitrary, because the goods that form the system are recognized as necessary for well-being in the context of a particular society. No one can reasonably suppose that education, justice, order, peace, public health, security, and stability, to which we may add liberty and prosperity, are arbitrarily regarded as goods. The serious question about them is not whether they are really good, but which of them should have priority when they conflict. It is this serious question that is answered by the complex justification.
Another objection may be raised against the complex justification: namely, that politicians competing for scarce resources cannot be expected to consider the wider consequences of the outcome of their competition. They need to prevail then and there, in order to serve the interests of the people who elected them and to remain in power. It is much too demanding that they should take a wider view, which may actually require them to go against the interests, including their own, that they are expected to represent. This is unfortunately true of many politicians, but it is not an objection to the complex justification. For what that justification aims to provide is a reasonable approach to conflict-resolution. That many politicians are shortsighted and insufficiently reasonable is not exactly news, nor is it an objection to the approach I favor. It would make political life less corrupt if politicians would make it a habit to consider the implications of what they are doing for the well-being of their country, rather than merely for their own and perhaps their constituents' well-being.
We have now seen how the complex justification justifies the possession of private property and the limits on its use. From this, it is but a small step to providing a justification for the remaining component of the right to private property: its actual use. Private property provides resources which we can use to satisfy our needs. As the interest-based justification rightly claims, it is in our vital interest to have a right to the use of private property. What the interest-based justification fails to note is that we may misuse the private property we have by satisfying needs that should not be satisfied and by not satisfying needs that we should satisfy. What specifically constitutes the misuse of private property, and how can it be avoided?
The number of ways in which people can and have misused their private property is large and depressing. They may be led to such misuse by self-deception, stupidity, addiction, neurosis, vindictiveness, fanaticism, taking unreasonable risks, and so on and on. Legal and political strictures against misuse cannot possibly take into account the countless individual ways in which people may waste their resources by using them contrary to their own interests. Protection of the right to private property must proceed, therefore, by thinking of interests in impersonal terms, that is, as interests that any normal adult in a particular context is going to have. The misuse of private property, then, may be understood as using it in ways that violate other people's interests impersonally conceived.
We can go a step further in specifying the ways in which the interests of others may be violated by the misuse of private property by drawing on what I have already said about justified possessions and limits. To misuse private property is to use it in ways that prevent others from trying to acquire private property legitimately, or to use it in ways that interfere with how others use their legitimately acquired private property. The reasonable use of private property, then, is within limits that strengthen rather than weaken the system of goods on which everyone's well-being depends in a particular context. Legitimate acquisition and reasonable limits, then, define an area of discretion within which people should have the right to use their private property in any way they see fit. If they use it within their area of discretion, they may still misuse it, of course, but they can blame only themselves if their interests thereby suffer. The proper business of politics and law is to protect individuals' right to private property, to protect them from interference by others, not to protect them from being harmed by themselves.
VII. Conclusion
In summary of this account of complex justification, it may be said that the justification of the right to private property depends on justifying its possession, use, and limits. Possession is justified if it has been acquired legitimately in accordance with prevailing conventions that are traditional, voluntarily adhered to, and serve the well-being of those who conform to them. Limits are justified if they are set by the system of goods on which everyone's well-being depends. And uses are justified within each individual's area of discretion.
It may be said in favor of this justification that it explains the importance of private property by interpreting it as the means of controlling resources we need for our well-being. This justification avoids the problems that beset the entitlement-, utility-, and interest-based justifications, and it offers a separate justification of the possession, use, and limits of private property. It is a mixture of old and new components. The old ones are the defensible portions of the entitlement-, utility-, and interest-based justifications; the new ones are the interpretation of private property as a means of control and the recognition that different aspects of private property need to be justified differently.
