I. Introduction
It is natural to assume that theorizing about property should be grounded in a foundation of theorizing about justice, and not vice versa. That is, philosophers should theorize about justice first, and only then think of themselves as in a position to theorize about what can legitimately become a person's property.
I have become skeptical about this. This essay explains why and sketches an alternative. I now see justice as something that can and does evolve in a given society. Moreover, as I see it, one driving factor of such evolution consists of facts about how judges, legislators, and cultures contingently respond to a particular history of litigation in particular and conflict in general.
Section II characterizes property rights, arguing that a property right first and foremost is a right to say no to proposed terms of exchange.Footnote 1Section III discusses an inherent practical limit of the right to say no. Section IV argues that this limited right, and its correlative duty to respect prospective trading partners, is the key to getting real production, real cooperation, and real community off the ground. Later sections consider what this has to do with justice, arguing that our philosophical theorizing about justice needs to answer to our legal, economic, and historical theorizing about property, at least as much as the other way around, lest our philosophical theorizing have no reliable implications for what situated flesh-and-blood citizens owe each other (or what society's basic structure owes citizens) in their everyday lives.
II. The Concept of Property
According to Wesley Hohfeld, the crucial difference between a mere liberty and a full-blown right is this: I am at liberty to use P just in case I have no duty to refrain from using P. I have a right to P just in case I am at liberty to use P, plus others have a duty to refrain from using P.Footnote 2 The difference between a mere liberty and a full-blooded property right is that a liberty, in this technical sense, is a nonexclusive right. A proper right implies a right to exclude other would-be users: a right to say no.
William Blackstone called property the “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”Footnote 3 In practice, though, property rights in Anglo-American law have always been hedged with restrictions. The dominion to which Blackstone refers is real, but limited by easements, covenants, nuisance laws, zoning laws, regulatory statutes, and customary understandings of the public interest.
Today, the term ‘property rights’ generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even destroy. (John Lewis generally is regarded as the first person to use the “bundle of sticks” metaphor, in 1888.)Footnote 4 The fact remains, though, that at the heart of any property right is a right to say no: a right to exclude non-owners. In other words, a right to exclude is not just one stick in a bundle. Rather, property is a tree. Other sticks are branches; the right to exclude is the trunk.
Why must we see it this way? Because without a right to say no, other rights in the bundle are reduced to mere liberties rather than genuine rights. For example, I could own a bicycle in a meaningful sense even if, for some reason, I have no right to lend it to your friend. (That is, this particular tree is missing the “right to lend” branch.) By contrast, if I have no right to deny you permission to lend it to your friend, then I do not own the bicycle in any normal sense. Thus, there is a conceptual reason why, among the various sticks that make up property, the right to exclude is the core.
This does not settle what, if anything, can justify our claiming a right to exclude, but it does clarify the topic. When we ask about owning a bicycle as distinct from merely being at liberty to use it, we are asking about a right to exclude.
Exactly what protection is afforded by the right to say no is a separable issue. Property P normally is protected by a property rule, meaning no one may use P without the owner's permission. In some cases, we might instead say that P is protected by a liability rule, meaning no one may use P without compensating the owner. In a third kind of case, P might be protected by an inalienability rule, meaning no one may use P even with an owner's permission. This is how Guido Calabresi and A. Douglas Melamed analyze the ways of giving property rights their due.Footnote 5
The takings clause of the U.S. Constitution's Fifth Amendment specifies that private property may not be taken for public use unless just compensation is paid. In Calabresi and Melamed's terms, the takings clause affirms that even when a compelling public interest precludes respecting a private property right by treating it as protected by a property rule, the public must still respect the right to the extent of treating it as protected by a liability rule.Footnote 6
The policy rationale for protecting property with property rules is that when a resource's only protection is liability rules, control of the resource is, for all practical purposes, concentrated in the hands of the bureaucrats who decide to treat one thing rather than another as a compelling public interest, and who make mistakes at other people's expense.
One rationale for liability rules is that sometimes it costs too much, or is impossible, to avoid impinging on someone's property. Or, in the case of torts, the impinging has already occurred, and the question is how to undo the wrong while acknowledging that the impinging was accidental rather than deliberate. (Where a property rule would require us to get advance permission from every owner on whom we impose a risk of accidental trespass, a liability rule requires instead that we compensate owners after the fact if we should accidentally damage their property.) One rationale for an inalienability rule is that there are forms of property so fundamental that we might cease to be persons in the fullest sense if we were to sell them. We may, for example, regard my kidney or my vote as my property, yet deny that this gives me any right to sell such things. In this respect, we would then be treating my right as inalienable.
III. Property's Practical Limits
The right to say no is stringent but by no means absolute. The right to say no is an institutional structure that facilitates commerce, that is, commerce in the broadest sense. When people have a right to say no, and to withdraw, they can afford to live in close proximity and to produce and prosper, without fear. The right to say no enables people to come to market and celebrate the fruits of their productivity, spreading the goods across a store window for all to see, without fear that the goods will simply be taken.
However, the right to say no is not a weapon of mass destruction. It does not put people in a position to gridlock the system. The right to say no is meant to be a right to decline to be involved in a transaction. It is not a right to forbid people in general to transact. For example, in many cases, judges have to affirm, as utterly basic to the concept of property, that owners have a right to exclude—to post a “No trespassing” sign. But does flying over someone's land at ten thousand feet count as trespassing? In the case of Hinman v. Pacific Air Transport (1936), a landowner, Hinman, sued an airline (Pacific Air) for trespass.Footnote 7 Hinman wanted the court to affirm his right to stop airlines from flying over his property. Hinman cited the ancient doctrine of ad coelum, which says that he who owns the soil owns it from the heavens to the depths of the earth.
The court was in a predicament, for the right to say no is the backbone of the system of property that, in turn, is the backbone of cooperation in a society of self-owners. Yet much of property's ultimate point is to facilitate commercial traffic, and ruling that landowners could veto the emerging airborne commercial traffic would have been a kind of red light that would gridlock traffic, not facilitate it. So the judge had to find a way to rule in favor of the airline without destabilizing the whole system of property. There were truths the judge was trying to track: about what institutional framework enables people to live well together, about what enables people to mind their own business, and about what would empower people to hold each other for ransom without conferring any compensating power or incentive to make a positive contribution.
The plaintiff relied heavily on ad coelum, but the court ruled that ad coelum isn't true, and never was. Subsequent readings were silent on this nuance, so far as I can tell, finessing the need to pronounce on ad coelum by interpreting air traffic as having a navigation easement, held by the public in theory and administered by the federal government in practice, which wasn't a radical departure from traditional law regarding easements.Footnote 8 Whatever else is true, though, the right to exclude was not the thing to give up, and in fact the practical instances of the right to exclude that had a history of mattering to people were left pretty much undisturbed by the Hinman decision.
It would be a manner of speaking, at best, to say that the court in Hinman, in coming to a verdict, was discovering a natural law. The court was trying to discover something, though, and what it was trying to discover was closer to laws of nature than to legislation. That is, the court was trying to discern the laws and economics of human coordination—realizing that the point of the rule of law is to enable people to prosper, and that the basic prerequisite of people prospering is that people be able to produce and then to trade. Moreover, the air traffic industry was a potentially revolutionary experiment in pushing the frontier of people's ability to produce and trade. The judge also realized that giving every landowner a right to treat air traffic as a trespass would throttle air traffic, because the cost of an airline transacting with every potential rent-seeking property owner on the ground would be prohibitive.Footnote 9
None of these facts are artifacts of legislation. There may have been no fact of the matter about what ad coelum really meant—no fact of the matter about whether landowners had a right to forbid people to pass over their land at ten thousand feet. Before the advent of air travel, no legal dispute had ever brought the issue to a head. There had not yet been philosophical debate that needed to be resolved in one way rather than another. Once air travel emerged, though, and once landowners filed suit against airplanes for trespass, that was when someone had to decide what ad coelum entailed (or discover what it ought to entail, by discovering what it needed to entail to be part of a system that helps people live together).
To be clear, it should be a rare event when judges step back to ask what property is for. Property is supposed to settle what is within one's jurisdiction and what is not. If it is settled that X is your property, then you are the one who gets to decide what X is for. When we get to the parking lot at the end of the day, you drive home that car and I drive home this one, period. When the institution of property is working well, no discussion is needed. Judges need to step back to ask what property is for when and only when the institution is not working well—when litigants run into a question that the institution has not yet evolved to answer.Footnote 10
Another thing to note is that, even given that justice has to answer to principles of traffic management, so as to enable people to move forward, the fact remains that to move forward, people need to look backward, to a degree, in order to secure conditions for reliable trade. For example, one has to do a routine title search when transferring title to real estate. One need not go back to the Middle Ages in search of histories of nonconsensual transfer. A routine title search is more modest, going back to a point where title appears to have been uncontested. A title insurance company then takes on the risk of warranting that it has done due diligence and that the title being transferred is good.Footnote 11
One further important clarification: It is (or, in any case, should be) no part of classical liberal theory that the right to property implies a correlative duty to roll over and die rather than trespass on someone's land. For the system to be stable enough to last, respecting the property system has to be a good option for just about everyone, including those who arrive too late to be part of the wave of first appropriators. And in order for respecting the system to be a good option for just about everyone, it has to be true that just about everyone has good options regarding how to make a living within the system.
IV. Property Rights as a System of Traffic Management
The main theses of Stephen Holmes and Cass Sunstein's The Cost of Rights (1999) are that rights depend on government and rights cost money.Footnote 12 They do not argue, but I would argue, that it is because rights are so costly that people who seriously believe in rights as a framework for revering persons as ends in themselves do not believe in lots of rights.
Consider that the whole point of fences, and of rights, is to get in the way. Or to use a different metaphor: rights are like traffic lights.Footnote 13 A mere liberty is a green light. A full-blooded right is a green light combined with a correlative red light. Some rules are better than others at unobtrusively enabling people to get on with their business. Traffic lights facilitate traffic movement not so much by turning green as by turning red. Without traffic lights, we all in effect have a green light, and at some point traffic increases to a point where the result is gridlock. By contrast, a system in which we take turns facing red and green lights is a system that keeps us out of each other's way. Of course, the system itself gets in the way when it presents us with a red light, but almost all of us gain in terms of our overall ability to get where we want to go, because we develop mutual expectations that enable us to get where we want to go more peacefully and more expeditiously.
We can see from this that we do not want lots of rights, for the same reason we wouldn't want to face red lights every fifty feet. We want the most compact set of lights that enables motorists to know what to expect from each other, and thereby get from point A to point B with minimal interference. By getting in our way to some degree, well-placed traffic lights, like well-placed property rights, liberate us, and help us stay out of each other's way.Footnote 14
Holmes and Sunstein's basic point is, as they say, obvious. Rights are indeed costly. (More generally, they could have said, government is costly—since what they mean by rights is essentially tied to government.) Their point is important, too, for a reason they leave unmentioned: namely, the cost of various alleged rights is one key way for theorists to sort out which rights ought to be taken seriously, for many alleged rights are prohibitively costly. The implication is that we cannot afford to teach people to think they have the hugely expensive ones.
Property rights are, among other things, red lights that tell you when the right to use the intersection belongs to someone else. Red lights can be frustrating, especially as a community becomes more crowded, but the game they create is not zero-sum. When the system works, nearly all of us get where we are going more quickly, safely, and predictably than we otherwise would, in virtue of having been able to coordinate on a system that enables us to know what to expect from each other.
Commercial traffic consists of people coordinating in a thick sense of undertaking elaborate projects together, and in a thin sense of staying out of everyone else's way as they pursue their respective projects. To secure coordination in a thin sense, people need some common understanding of torts and property. To secure coordination in a thick sense, people need a common understanding of their right to say no and also of new obligations created by freely saying yes. Thus, they need common understandings of contract as well as of tort and property.
V. Justice
What about the pedestrians, one might ask?Footnote 15 That is a crucial respect in which the traffic-light metaphor radically understates the benefit of a successful property regime. Literal traffic lights are working well when people manage to stay out of each other's way, but commercial traffic management must pass a far more stringent test. Commercial traffic's aim is not merely to be accident-free but to bring people together. Rising commercial traffic is a boon, not a drag. The ultimate secret of progress and prosperity is the cooperation of multitudes. Commercial traffic—the trucking and bartering of multitudes—is a community's lifeblood, enabling children to grow up to become drivers.
Not every would-be motorist gets a car at the same time, but commercial traffic's point is to produce and disperse the means of participating in the market.Footnote 16 Ensuring that everyone gets a car on the same day, or at the same age, is not the point. If, instead, we were to insist on a distributive principle such as “no one gets cars or computers or kidney transplants until there is enough for everyone to be guaranteed one at the same time,” that would be the sort of red light that gridlocks a system, bringing progress to a crashing halt. That red light has no place in a community's system of traffic management, no place in its system of property, and therefore no place among its principles of justice, because that sort of red light cannot coexist with people having reason to live in that community.Footnote 17
The traffic management function of property conditions what can count as justice, given that whatever we call justice has to be compatible with people prospering, which means it has to be compatible with the system of property that enables people to prosper. If whatever we choose to call justice is not compatible with property, then we have no reason—indeed, no right—to take so-called justice seriously.
We have reason not to treat justice the way philosophers have treated it in recent decades, as a matter of distributing shares. Some philosophers even ask us to imagine rational contractors coming to a table to divide the economic pie. Bruce Ackerman is candid enough to refer to what contractors come together to distribute as manna from heaven.Footnote 18 In the real world, though, the stuff that would-be distributors want to distribute tends to be a product of lifetimes of work. Intuitively, it is not just—and, to say the least, is not the essence of justice—to ignore the fact that what distributors want to distribute is not manna but is in fact produced by other people. Holmes and Sunstein get at this fact, albeit inadvertently, when they stress that rights cost money.Footnote 19 More precisely, pie costs money; it sits on a table awaiting division only if someone paid the cost of creating it and then getting it to the table.
I see real justice as a response to whole persons, especially persons as producers of pie, and most definitely not just as a response to persons as stomachs—that is, as mere consumers of slices of pie. To respect producers, we have to respect what they have produced, and what they have plowed into production.Footnote 20 (We have to give up on theories that ask us to pretend not to be able to tell the difference between people who contributed to a given production process and people who didn't.) So we have to talk about what we have reason to regard as theirs, rather than as someone else's.
Holmes and Sunstein repeatedly present their thesis that rights cost money as refuting libertarians and conservatives. They scoff at “the libertarian fiction that individuals who exercise their rights, in the classic or eighteenth-century sense, are just going about their own business, immaculately independent of the government and the taxpaying community.”Footnote 21 Conservatives are supposed to be similarly oblivious to the cost of rights. In Holmes and Sunstein's words, “Conservatives, for their part, may prefer to keep quiet about—or as their rhetoric suggests, may be oblivious to—the way that the taxes of the whole community are used to protect the property rights of wealthy individuals.”Footnote 22
Not once in Holmes and Sunstein's book is the most important corollary of the truism that rights cost money even mentioned. Namely, there is a world of variation in what particular rights cost, and some of the rights-claims that government has granted cost a lot. Footnote 23
When we are trying to articulate principles of justice that we have reason to take seriously in a world like ours, one way to start is with an understanding of what our world is like, and of which institutional frameworks promote our thriving in communities and which do not. If we start this way, we can sort out alleged principles of justice by asking which ones license mutual expectations that promote our thriving and which ones do otherwise.
A priori reasons for endorsing principles of justice generally are not good enough. A good enough reason would be something like this: to endorse this way of applying this principle in this kind of circumstance is to support institutional frameworks that position us to play positive-sum games that make no one worse off, or that at worst limit negative externalities (noise pollution, say) to levels and kinds widely accepted as a reasonable price of living in communities.
A. Creation myths
Holmes and Sunstein refer to “the obvious truth that rights depend on government.”Footnote 24 But Holmes and Sunstein are smart enough to know that this is not obvious, and readers should not let themselves be intimidated. Let me quote the paragraph from the beginning: “The Declaration of Independence states that ‘to secure these rights, Governments are established among men.’ To the obvious truth that rights depend on government must be added a logical corollary, one rich with implications: rights cost money.”Footnote 25 Notice that the Declaration denies, rather than states as obvious, that rights depend on government. The Declaration says that part of what can justify establishing a government is its efficacy in securing rights: the explicit point is to secure rights, not to create them.
Legal rights admittedly are creations in some sense, but there remain truths about which legal rights ought to be created and which ought not. Holmes and Sunstein say:
A liberal government must refrain from violating rights. It must “respect” rights. But this way of speaking is misleading because it reduces the government's role to that of nonparticipant observer. A liberal system does not merely protect and defend property. It defines and thus creates property. Without legislation and adjudication there can be no property rights in the way Americans understand the term.Footnote 26
Since they mention misleading ways of speaking, it seems fair to note that Holmes and Sunstein are speaking of how they understand the term, which has little or nothing to do with how “Americans” understand the term. Holmes and Sunstein acknowledge that a liberal government must refrain from violating rights, yet their view entails that the all-too-easy way for a government to ensure that it does not violate rights would be to eschew creating inconvenient rights in the first place. I observe that there have been Americans—including judges, legal theorists, and founding fathers—who understood the term differently.
I would not deny Holmes and Sunstein's premise that property would, on balance, be more insecure if governments were not in the business of protecting it. That property would be nonexistent in the state of nature, though, is either false or an empty tautology, depending on whether we treat property as legal rules that only governments can create, or as forms of possession that neighbors respect by spontaneous village custom. Property in the latter sense is an institution that governments sometimes recognize, ratify, and clarify. On this reading, there is nothing trivial about what governments can bring (and what governments at their best do bring) to systems of property, but there is nothing primordially fundamental about it either.Footnote 27
More generally, if rights and correlative duties are true claims about how moral agents ought to be treated, then the idea that such truths do not exist until governments say they exist just isn't credible.Footnote 28 The idea that rights would not be enforced without government is closer to being plausible. Still, even that weaker claim is dubious. Our ancestors were marking and defending territory long before there were governments. Even today, most protection and enforcement is not governmental but is instead in private hands. Normally, we call government police not to prevent crimes but to fill out forms and otherwise deal with the aftermath.
As the infrastructure of coordination and cooperation emerges, one of the services in scarce supply will be basic physical security. People do not come to the market unless they are confident that they will survive the trip (or at least that making the trip is safer than staying home). Eventually, ordinary producers not only make the trip, they begin to feel so secure that far from concealing the value of what they possess (to limit the extent to which they are targets for robbers), they begin to openly advertise the fruits of their productivity. When that happens, there has been a minor miracle. Society has progressed to a point of being able to secure an expectation that such fruits will be transferred only by consent.
B. What plumbers do well
Having (for better or worse) defined rights as basic interests that government can protect,Footnote 29 Holmes and Sunstein suppose that
[i]t is perfectly obvious that people cannot lead decent lives without certain minimal levels of food, shelter, and health care. But calling the crying need for public assistance “basic” may not get us very far. A just society would ensure that its citizens have food and shelter; it would try to guarantee adequate medical care; it would strive to offer good education, good jobs, and a clean environment.Footnote 30
Here are two responses. First, suppose we grant that the proper way to evaluate societies is by asking whether they empower and enable people to lead decent lives together. How then would we evaluate plumbers? We might ask the same sort of question: namely, do plumbers make us better off? But we would not use that question as a template for a plumber's job description. A job description would be narrower and would have something to do with plumbing. Suppose, then, that we call a plumber to fix a faucet, but decline to turn over to the plumber the jobs of feeding and clothing us and providing us with health care. Would we thereby be failing to take “crying needs for plumbing assistance” seriously? No. We simply recognize that a plumber's job description—a plumber's particular way of making us better off—does not encompass everything. Nor should it. Why not? Because if plumbers had a license to do everything (without customers' consent! without needing to say in advance what the service will cost!), we would live worse lives, not better ones. The point is, if we decline to turn over a given job to the plumber, it may be because we fail to see how important the job is. A more likely explanation, though, is that we decline precisely because we do see how important the job is.
C. Guarantees
My second response is to recast Holmes and Sunstein's basic point: guarantees cost money. As they say, people need food, shelter, and occasionally medicine. It is neither obvious nor even true that people in any analogous way need guarantees.Footnote 31 Nor is it comparably obvious that justice has much to do with guaranteeing that citizens will, like it or not, have to pay the price of meeting other people's needs but not their own.Footnote 32
Thus, people who clamor for guarantees should stop and ask whether the guarantees they envision, in the hands of ordinary government administrators, will actually make people better off. Are such guarantees guaranteed to make people better off? Why don't we need that to be guaranteed as a prerequisite of having any right to start issuing guarantees?
Better yet, why don't we need at least to be guaranteed that issuing such guarantees won't make poor people worse off? If guarantees are so important, we should clamor for that guarantee first, and clamor for additional guarantees only after getting that one.
Holmes and Sunstein say that “a theory of rights that never descends from the heights of morality into the world of scarce resources will be sorely incomplete, even from a moral perspective.”Footnote 33 I could not agree more. We must look at patterns of results, and once we see the pattern, we should take the hint. For a start, we can measure how much a society has achieved, along one uncontroversially important dimension, by looking at life expectancies. In 1900, life expectancy in the U.S. was forty-seven years for white males, and thirty-three years for black males. By the year 2000, life expectancy was seventy-five years for white males and sixty-eight years for black males.Footnote 34 This represents an incredible achievement. Whether the U.S. government ever guaranteed that people would live that long is beside the point.
Prosperity's foundation is productivity, and productive societies are always the ones that do not overdo the guarantees.Footnote 35
D. The meaning of life well lived
To theorize about justice and do it well, we need to start by considering what it takes for people to prosper in communities. However, a judge need not know every facet of that genuine ideal of justice to say something about justice in a given case. All a judge needs to know is that commercial traffic management is a prerequisite of achieving that ideal on any non-question-begging interpretation, and that some kinds of property rights are a prerequisite of effective commercial traffic management. A judge has to see that litigants come before the court with their own visions of the good life. Usually the visions are compatible, but the litigants have incompatible views about their right to pursue their vision in a given way. A judge's job is to resolve the conflict. A judge never needs to know the details of people's visions of the good life, but in hard cases a judge does need to keep in mind that the job of the court is to clarify the rights-of-way at issue in such a way that people such as these litigants in circumstances like theirs will be able to get on with pursuing their own visions, and will be able to do so in peace, assisted by a verdict that clarifies what people like these litigants reasonably can expect from one another. In metaphorical terms, we need to know that our system of traffic management is helping people get where they want to go, accident-free. We do not need to know or to evaluate the details of where they want to go.
What it means to prosper is somewhat (although only somewhat) underdetermined by theory, but communities work out the details. For one thing, people will not prosper together unless they come up with a system that does not require consensus on the details. To prosper, people need to agree on who has jurisdiction, that is, who gets to make the call. The point of property rights is to settle who gets to make the call. That is part of the explanation of why liberal societies are places of rising prosperity (and also of why measures of prosperity tend to be controversial).
Which kinds of property rights enable people to prosper together? In a nutshell, the kind that can evolve to internalize evolving externality problems while securing the opportunity and incentive to produce, invent, and otherwise help a society make progress. In most times and places, this will mean a mixed regime in which important bits of property are held by the public but in which the primary means of production are in private hands. That kind of mixed regime has been tested repeatedly in practice. Evidently, and for well-known reasons, it just works better.Footnote 36
Worldly principles of justice are principles of conflict resolution and conflict avoidance. They define and codify legitimate mutual expectations and articulate ideals about what is involved in being a good neighbor in a particular community. A principle can and does work better if it responds to the realities of where people happen to be, and points the way to something better starting from where they are. And making progress from where they are is most imperative when where they are is not already fair and just.
If asked whether plumbers help us live well together, we might say, “Of course, so far as plumbing goes.” The indeterminacy of what is to count as living well would not trouble us in that circumstance. Why not? Partly because such a question sounds ordinary rather than technical, and we know what the words mean well enough to have no trouble with them in ordinary conversation. Another part of the explanation is that what plumbers contribute to society is concrete and specific enough that no warning bells go off. We know what they contribute, and we know that the contributions of the ones who do an honest job are straightforwardly positive, even if limited. So, if we asked whether traffic lights help us live well, that too would have a straightforward answer. Lights that are well-placed and function reliably do indeed help motorists live well. I suppose we could say much the same of property rights. Some rights (but not others) internalize externalities, effectively enshrine a right to say no, help people stay out of each other's way, help people feel secure enough to take the risk of investing in cooperative ventures, and so on.
Property rights don't do everything for us, any more than traffic lights or plumbers do. Traffic lights don't cure cancer. (Perhaps property rights do in a sense cure cancer if and when they help us find whatever we are hoping to find when we come to the market, including opportunities to do research, and to buy and sell what we discover in the process. Perhaps there is nothing that property rights cannot ultimately help us do. On any given day, though, property rights will not be a panacea.) They will help secure our possessions well enough to make it safe for us to be a part of the community. That is a lot, but it isn't everything.
If we could conceive of people more or less in isolation, then living well for them would consist of being self-sustaining in a quite literal sense. As trade begins to emerge, though (which is another way of saying, as communities emerge), there emerges with it the opportunity to be self-sufficient not by producing enough directly to meet one's own needs so much as by producing enough to meet other people's needs. As a rule, the people we think of as more or less self-sufficient members of a community come nowhere near to producing enough to meet their own needs (in the way a hermit would need to do). They do not even try. Instead, they go to the market to offer their plumbing or cancer-curing services to other people, and after a series of trades they go home with plenty of food for their families, typically without producing a grain of food.
Yet people cooperate only if they establish adequately understood and mutually acceptable terms of cooperation. The possibilities multiply when people become able to give their word, create mutual expectations, and count on agreements being kept. Being able to count on one another makes possible the rule of law, which enables people to trust each other even more, giving up on the idea of being self-sufficient and instead becoming especially skillful at making their neighbors better off in particular ways. The division of labor thus vastly expands the opportunity to be served by, and in turn to be of service to, vast multitudes. In an advanced commercial society, one can produce for customers whom one will never meet. One may be only dimly aware of their purposes, and indeed of their very existence; one knows only that sales are good. Someone somewhere must deem the product worth paying for, and that is all that an ordinary producer needs to know. On such foundations are modern society and our unprecedented modern prosperity built (a prosperity undreamt of as recently as a century ago, even by science fiction writers).
VI. What Property Is For
When I taught the first-year Property course at Florida State College of Law, I was fascinated to imagine what it must have been like to have been in the judges' shoes in the cases we studied. Judges found themselves having to resolve competing claims, and in the more interesting cases, each side brought to bear relevant and weighty moral and legal desiderata. Typically, it would have been superficial to interpret the conflict as between, say, justice and utility. The claims were competing claims of justice, and the judge was in a position of having to interpret the rival claims so as to render them “compossible.”Footnote 37 A judge might face a case where the plaintiff claims a right to run a school unmolested, complaining that the defendant has no right to interfere. The judge looks at how the defendant is alleged to have interfered and says yes or no. If the interference took the form of running a superior school that “steals” the plaintiff's customers, the judge throws out the suit. Why? Because the plaintiff's customers are not the plaintiff's property, so “stealing” them is not really stealing. If the interference instead took the form of firing guns into the air and frightening parents into removing children from the school, then the judge rules for the plaintiff, because that sort of disturbance is an intentional trespass, aimed at making the plaintiff's parcel a less desirable location for a school. It deliberately sabotages the operation of the school with no constructive purpose in view.
A. Before justice
All this suggests that, at least in hard cases where judges aim not merely to apply principles of justice but to articulate them (sometimes for the first time), judges have to make decisions about where to locate property's edges, and in the process settle whether justice sides with this litigant rather than that one.
The details of justice in a given time and place are not specifiable by armchair philosophy. The substance of justice is partly a product of contingent pressures of actual dispute resolution. No one needs to know whether flying over someone's land at ten thousand feet counts as trespassing until actual disputes come before a court. We could see this as an epistemological issue—saying there are eternal truths that we learn by going to court. I am not sure that much of practical significance rides on this, but I find it more realistic to interpret the issue as metaphysical: there is no truth of the matter about what the law is until litigants force the issue, creating a need for a ruling and a common understanding. Indeed, sometimes there is no uniquely determinate truth about what the law ought to be. (Sometimes rulings are like deciding whether distances will be measured in miles or kilometers, or whether people will drive on the left or the right.) The only determinate truth is that a decision has to be made one way or another, so people can get on with their lives with a better idea of what to expect from each other.
Even natural law theorists would acknowledge that the edges of the concept of property are underdetermined by theory. Edges must be defined and refined by practice and custom, and sometimes by judges confronting newly evolving edges of the traffic management problems that property rights are supposed to solve. Often, there are right and wrong answers to how edges need to be defined so as to settle current disputes, enable people to get on with their lives, and avoid disputes in the future. To return to the flyover case, a landowner's right to say no, essential though it may be to land ownership, would have been a recipe for gridlock had it been taken to entail that airlines generally need permits from individual landowners to have a right to fly.
In Hinman, the nature and value of commercial traffic settled the question of where to locate the boundaries of rights and justice, not the other way around. The judge was trying to take rights seriously. He succeeded. His verdict left us with a system of rights that we could afford to take seriously. He took a system that had come to be inadequately specified relative to newly emerging forms of commercial traffic, and, in a predictable, targeted, not overly clever way, made the system a better solution to the particular problem confronting his court.Footnote 38
Property's normative roots are to be found less in philosophical theorizing about justice and more in whatever the truth of the matter happens to be in a given time and place about what it takes for people to be able to prosper together. The latter discussion turns on facts about what it takes to induce and inspire people to be productive, that is, to identify and meet needs, not only their own needs but also the needs of the people around them.
The point here is not that justice is unneeded or unimportant. In particular cases, we want it to be true that justice is the most important thing, or perhaps the only important thing. But reaching a point where justice holds sway in that manner is an achievement. Judges in hard cases don't have such principles to appeal to; by hypothesis, they begin with principles that are silent on the issue at hand. They need to articulate, discover, extend, or in any case decide what justice says in the kind of case they are facing, and (in a precedent-driven system, at least) if they rule well, they will make similar cases easier to resolve in the future.
If the principles of justice are to be compatible with people getting what they need, then they must be compatible with people getting what they need from a property system, because people do after all need a property framework, and they need it to function in a particular way. (They likewise need a traffic management system, and need it to function in a particular way.) If an alleged principle of justice rules out what people need to do to coordinate expectations, internalize externalities, and secure their possessions well enough to make it safe for them to look for ways to make their customers better off, then people need to keep looking for principles of justice that they can afford to respect. By analogy, if an alleged principle of justice ruled out doing what people needed to do to meet their dietary needs, then people would have to keep looking for principles of justice they could live with.
B. Property as theory-laden
Scholars such as Gerald Gaus sometimes claim that it is basic to any liberal philosophy that there is a presumption against coercion, and thus that coercion has to be justified.Footnote 39 Critics reply (at least in conversation) that the presumption against coercion is theory-laden, and in particular presupposes a controversial conception of property and especially of self-ownership.Footnote 40
Alternatively, one might argue that society sets prices, thereby determining the remuneration of particular skills sets, and therefore ought to use redistribution to make amends for setting so high a price on, say, the services of the most talented entertainers. On the one hand, if it were customers who were responsible for deciding whether to pay that high a price, out of their own pockets, then it would not be society's business. In that case, society did not calculate prices at all, so it did not miscalculate either. There is nothing to feel guilty about. On the other hand, if society is the true owner of the money, and for that matter the talents, then (and only then) the question of how to distribute becomes very much society's business. Some of the things Gaus would call coercion—some of the things that call for justification—would not be coercion at all. They would simply be a matter of an agent (the state) deciding how to allocate resources that the agent has every right to allocate.
Perhaps the critics are wrong. But if the critics are right, what follows? In particular, if I cannot justify my possession, does that entail that someone else has a better claim to my possession than I do? Or is it the case that the king (or the state) does not need a better claim, so long as he can convince himself that there is some problem with my claim? Perhaps no one has a better claim than anyone else. Would that leave the king (or the state) at liberty to settle the question with raw power?Footnote 41
Philosophers Liam Murphy and Thomas Nagel write: “The state does not own its citizens, nor do they own each other collectively. But individual citizens don't own anything except through laws that are enacted and enforced by the state.”Footnote 42 I wonder, which is it? Who owns a citizen's body, if not the state, not the “people,” and not individual citizens either? Perhaps there is a fourth alternative: no one owns the citizen's body. No one holds a right to say no. But if no one has an exclusive right to a citizen's body, and therefore no one has a correlative duty not to seize that body, that is not liberalism. It is not even civilization.
Property is in some ways conventional, but that is not to call it arbitrary. We may decide arbitrarily to drive on the right rather than on the left, but once a decision is made, the further decision to respect a convention of driving on the right is not arbitrary. And property conventions are less arbitrary than that. There are compelling (even if not universally decisive) reasons to treat a given crop's grower as the crop's owner rather than, say, tying ownership to being the next person to introduce crop disease, or being the next to seize the throne.
Gaus is right; there really is something basic about his premise that coercion is the paradigm of what requires justification, as a straightforward claim and also as a characterization of what is involved in being a liberal. If coercion did not need justifying, not much would. I would add (realizing this is somewhat alien to Gaus's own approach) that if Gaus's premise required defense, a defense would be ready to hand. (It is not part of my view that Gaus's premise requires a defense, only that a non-question-begging defense is in fact available.) Namely, people have a record of prospering together when they treat each other as self-owners, and thus treat the coercing of other selves—disposing of their possessions without their consent—as the paradigm of what needs justifying.
VII. Conclusion
One familiar way of theorizing about justice and ownership starts with ideal theory, meaning that we assume a world of perfect compliance, then decide what the principles of justice should be in that world. Some theorists, for example, start with intuitions about how much inequality justice permits, formulate a theory that underwrites those intuitions, then infer what sort of redistribution is needed to keep our evolving wealth distribution in compliance with justice by the lights of that theory. Then our job as moral philosophers is done, as we turn the resulting compliance problem over to experts at implementing policy. Let them learn from experience how many police it takes, with what legal powers, to implement justice so conceived. In short, do the philosophy first; save the social science for later. That is one way.
A second way to talk about justice in ownership starts by picturing a world of human beings as they actually are, and then says that the first virtue of social institutions is that they help such beings live together, realizing the best of the potential benefits while avoiding the worst of the potential costs of community life. After we have such a picture in front of us, we go on to say that alleged principles of justice, if they are to have any place in society, must find their place within—must facilitate rather than thwart—the growing of such beneficial institutions, including property institutions. Before we formulate principles of justice, we first draw conclusions about which principles are compatible with growing institutions, norms, and expectations that people need to live by if they are to live well together. Thus, if an alleged principle of justice (such as “People should not have to pay for basic human needs”) rules out our using a price mechanism to distribute bread, and if a price mechanism is the only way to distribute bread without starvation and without turning the central distributor's subjects into a groveling underclass, then we know we have no duty, indeed no right, to try to impose that alleged principle of justice on our fellow citizens. If justice is not the only (or even the first) virtue of institutions, or of persons, then not everything that matters is a matter of justice.Footnote 43 My claim in this essay is that figuring out what else matters can be an essential step in determining what justice itself is about.
Think of the choice between these two ways of theorizing about justice in terms of direction of fit. The first approach says that our world ought to fit our theory of justice, and “you can't make an omelet without breaking a few eggs.” The second says that our theory of justice ought to fit our world, and “you can break a lot of eggs and still not have an omelet.” This second approach treats functioning property institutions as morally fundamental and justice as derivative. Philosophy has tended to choose the first path, which empowers us to begin (and end) with philosophy, without all the hard slogging through law, economics, history, and other disciplines before we can even start philosophizing. In a way, this is understandable, but still, it is time for a change.
This has been an essay in the how and why of nonideal theory: in particular, how and why principles of property come first and principles of justice second. Ownership conventions, and property law as it develops under the pressures of case-by-case dispute resolution, tend to become touchstones for conflict mediation down through generations. These conventions (and property law itself) remain imperfect, retaining vestiges of adaptations to ancient problems that no longer exist; yet still they work, coordinating expectations so as to make it easier for people to live together.
