I. INTRODUCTION
Private ownership introduces a conflict between the rights of some and the interests of others: by granting the owner rights to a thing, we remove it from the commons,Footnote 1 possibly depriving others of access to the resources they need to survive and flourish. Property theorists today adopt one of two strategies to deal with this conflict. The first, overwhelmingly more popular strategy is property instrumentalism. According to this approach, property theory's job is to indicate what allocation of legal rights and duties would best promote some important set of interests, such as the maximization of aggregate wealth,Footnote 2 the promotion of moral virtue, or the preservation of some form of equality.Footnote 3 Property instrumentalism is a very broad tent; indeed, it might seem odd to treat such widely divergent schools of thought together in this way, but it is important to keep in mind that even though they disagree sharply in their favored objectives, they are at one on this more basic question of how property theory ought to operate. It is also noteworthy that all such accounts—even the most ardent law and economics accounts—are fundamentally collective in their ultimate concerns: they take the structure of individual property rights to be up for grabs, to be determined in whatever way best promotes some societal goal.
The second, much less popular approach is the natural-property-rights approach championed by libertarians such as Robert Nozick.Footnote 4 In contrast to instrumentalist accounts that allocate individual property rights in whatever way best promotes some societal goal, the libertarian account disregards human interests altogether and insists that owners are entitled to do with their property as they like and to exclude others from it as they see fit simply in virtue of their legitimate acquisition of it.Footnote 5 According to libertarians, any limit on the owner's sole despotic dominion over her property out of concern for the interests of others represents an unjustifiable interference with individual freedom.
Now, when faced with a stark choice between these two approaches, it is not surprising that most property theorists have opted for some variety of instrumentalism. It seems almost absurd—and certainly coldhearted—to suggest that property owners should always be entitled to insist on the right to exclude others from their property irrespective of those others' circumstances. Nevertheless, liberals (and most property theorists in the English-speaking world conceive of themselves as liberals of one stripe or another) also have good reason to reject instrumentalist approaches to property law as well. Liberals should surely be worried about property instrumentalists' inclination to alter property rights—core to individual liberty on almost any liberal account—in whatever way best helps us to achieve some collective goal. If claims of individual freedom mean anything at all, then they should impose at least some limits on the ability of central planners to rearrange property rights in whatever way best suits our collective objectives.
Enter Kant—or, more precisely, the Kantian philosophy of law as set out by Arthur Ripstein in his book Force and Freedom.Footnote 6 According to Ripstein, the Kantian account promises a distinctive “third way” in property theory that addresses the claims of individual freedom championed by libertarians and the claims of collective interests championed by instrumentalists. Moreover, the Kantian approach promises to satisfy both concerns not by an unprincipled trade-off but rather by means of a careful rethinking of the demands of individual liberty. Like the libertarians, the Kantian approach insists that claims of individual freedom are sacrosanct and cannot simply be disregarded in order to accomplish some favored collective goal. But unlike the libertarians, the Kantian account insists that at least some minimal level of concern for others—ensuring that they are not destitute, totally ignorant, dying for lack of basic health care, and so on—is essential to the rightfulness of our property claims. The point for the Kantian is that property claims are enforceable claims of right only if they are part of a larger system that ensures the conditions of what Ripstein calls “social solidarity,” guaranteeing the basic preconditions of individual freedom to all.
Thus the Kantian insists that politically legitimate property law has a more complex structure than either of the other accounts is willing to acknowledge. There is a realm of private right that mostly has the structure the libertarian says it does: the individual owner's right to exclude all others.Footnote 7 But there is another, distinct realm—the realm of public right—that is also crucial to the legitimacy of property claims. In order for individual property claims to be enforceable claims of right, they must be part of a system that also ensures the conditions of freedom for all. Thus there must be a public authority in place that ensures that no one falls into a situation of dependence on others. It does so by putting in place public institutions of public education, health care, welfare, and so on that guarantee all these basic requirements of freedom as independence. The Kantian account not only demonstrates the necessity of state power, however; it also insists on quite strict limits on the scope of legitimate state power. The Kantian account insists that the state is legitimate from the point of view of individual freedom only insofar as it acts to ensure that no one falls into a state of dependence.
The distinction between private right and public right plays a crucial role in the Kantian approach to property theory. Recall that for the Kantian, the structure of property rights is the product of both private and public right. The demands of private right are fairly clear for Kantians: owners have the right to exclude all others from their property. Although the meaning of this claim is not as determinate as instrumentalists might like, it is still a good deal more so than the demands of public right. All that Kantian property theory can say for sure about public right is that the state must somehow guarantee that no one may fall into circumstances of dependence on others, from ignorance, poverty, or for other reasons. But how the state should go about ensuring this, the Kantians would say, is simply not the business of property theory. For the Kantian account, all that we can say is that setting out structures to accomplish these goals is an essential precondition to the legitimacy of any regime of private property—and that setting out these structures is the sole ground of legitimate state action. But since there are many different ways to satisfy these requirements, Kantian property theory is equally consistent with a wide variety of different legal arrangements.
In this essay, my primary purpose is expository. I aim to show that Kantian political philosophy as set out by Arthur Ripstein is not merely a new contribution to property theory; it is, rather, a radical rethinking of both the subject matter and the methods of property theory, and one that cannot be dismissed lightly. Since instrumentalism is by far the dominant approach in property theory today, I orient my exposition of the Kantian account primarily toward those who endorse that approach. In addition, however, I also address the merits of the Kantian account of a range of issues.
In Section II of this essay, I set out the basics of the Kantian approach: its division of public and private right as a mechanism for satisfying both the claims of individual freedom and the most basic concerns of others. In this section, I make clear that insofar as poverty and inequality are relevant to Kantian property theory, it is not because they affect human happiness or wealth or virtue; it is simply because they may affect the guarantee of individual freedom as independence to all that Kantians see as crucial to the justification of a system of private property. I focus here on the division of labor that Kant proposes between public and private right in response to the problem of poverty and dependence.
In Sections III and IV, I consider some objections to the Kantian division of labor from the perspective of progressive property theorists—an important group within the instrumentalist tent. Much of their resistance to a Kantian account of public rather than private responsibility for moral and social problems like poverty arises from their fundamental disagreement about what it is that a theory of property should tell us. Kant's concern is to set out the grounds of legitimate authority—the state's and owners'—rather than to provide specific direction about how best to exercise that authority. For instrumentalists, by contrast, property theory is not concerned with the grounds of legitimate authority; it is a more practical tool that should help policy-makers to resolve determinate conflicts over the use and distribution of resources.Footnote 8 The Kantian, by saying very little about what owners or the state must accomplish—that is, about what is a good or bad use of authority—appears to let through too many “wrong” answers, from the point of view of a given moral theory. But once we bear in mind that Kantians and instrumentalists are simply answering different questions, we might be able to overcome at least some of the instrumentalist resistance to the Kantian project.
But, as I argue in Section IV, the Kantian model raises much deeper concerns for instrumentalists of all stripes.Footnote 9 If the only legitimate foundation for state action is the preservation of freedom as independence, this places some important limits on our choice of policies in response to the moral and social problems that private property introduces.Footnote 10 Put another way, instrumentalists might worry not only that the Kantian approach insufficiently guards against “wrong” answers but that it might also preclude consideration of some “right” answers. Now, as Ripstein shows, many of the social goods that instrumentalists embrace will be achieved (at least to some extent) by the institutions of public right that Kantians see as essential preconditions to the legitimacy of private property.Footnote 11 But instrumentalists might still question whether the Kantian approach offers cover enough for the modern state to “do the right thing” in response to the moral and social problems associated with private ownership.
Finally, in Section V, I consider whether Kant's concern for individual freedom actually requires a conception of ownership as a right to exclude. Although it is clear that Kant himself thought that a strong right to exclude without regard to the interests of others was an essential precondition for individual freedom, I suggest in Section V that this might not be so. My aim in this part is to show how a liberal might coherently depart from the traditional Kantian commitment to the idea of ownership as a right to exclude. I argue that we can conceive of ownership rather differently and still satisfy what Kantians take to be a basic demand of freedom: the extension of individual freedom to the external sphere. I argue that ownership may be thought of instead as a right that others defer to the owner's authority such that the owner's choices with respect to her things shall always have priority over the choices of others. Freedom does not require that an owner make every decision with respect to a thing; rather, it requires just that every decision she does make be treated as authoritative. This reworking of the Kantian position does not bring us to a theory of property that is functionally equivalent to the egalitarianism of some progressive property theorists, but it does mitigate the selfishness of ownership by limiting the exclusionary power of owners.
II. DISTRIBUTION OF AUTHORITY BETWEEN PRIVATE AND PUBLIC RIGHT
Instrumentalists and Kantians offer very different perspectives on the role of law in reconciling the property rights of owners and the interests of nonowners. For instrumentalists generally, the point of property theory is to generate specific solutions to specific conflicts about resources in a variety of different contexts. There is no idea of ownership that has a structure of its own to constrain our thinking; instead, it is up to policy-makers to choose the best structure of ownership. And policy-makers, the instrumentalists insist, should choose the structure of ownership that generates the most attractive solutions to particular conflicts from the point of view of their favored ends. That is, instrumentalists believe that the question of what constitutes the rights of ownership is always to be decided piecemeal, for ownership (on this account) is nothing more than a “bundle of rights”Footnote 12 that we assemble as we wish. The job of policy-makers, on this account, is to assemble the bundle in whatever way best satisfies our collective policy objectives.
Over the past hundred years or so, there have been many different objectives put forward as the appropriate one to guide policy-makers designing property institutions. In the earlier part of the twentieth century, the French legal theorist Louis Josserand argued that social welfare is the guiding principle of ownership; the validity of each ownership decision must be assessed with reference to the social goals that it furthers.Footnote 13 According to Josserand, owners should not be permitted to act in their own private interests where these conflict with the interests of society.
Mid-century American legal realists and their successorsFootnote 14 offered a similar ad hoc strategy for ensuring that property rights are consistent with societal goals: judges make ex post decisions about an owner's configuration of rights, privileges, and powers that are the most socially useful in a particular case.Footnote 15 Ownership, on this view, does not command our deference but rather invites us to exercise our moral judgment in particular cases by weighing the value of an owner's purposes against competing interests.Footnote 16
More recently, neo-Aristotelian property theorists have emphasized property's role in fostering community and interdependence.Footnote 17 Property rights, seen from this perspective, do not (or at least ought not) enable individuals to withdraw from others and to pursue separate, selfish ends; rather, property is “a powerful vehicle for tying people more closely to their respective social groups.”Footnote 18 In this context, a system of property serves as a kind of “indirect morals legislation” that coercively enforces owners' moral obligation to make sacrifices that contribute to human flourishing.Footnote 19 These sacrifices range from accommodations for nonowners (e.g., public access to private beaches) to contributions to public projects (e.g., the preservation of historic buildings or the surrender of land needed for roads, etc.).
Most instrumentalists are quite well aware of the fact that property law is only one legal institution among many, so it is appropriate to leave room for other institutions to do some of the work of promoting their desired ends as well. But although they recognize that a division of labor among different areas of law is appropriate, they do not provide any principled way of dividing up the labor. For most instrumentalists, private law and public law simply offer different tools for tackling the same set of substantive moral or economic questions (the choice among these tools being for the most part a pragmatic one). One important consequence of these views is the dissolution of any clear idea of ownership with any independent normative content. In order to achieve the right balance of interests, the idea of ownership must be flexible to the point of lacking any form at all; no particular claim-rights, privileges, or powers necessarily accompany the position of owner. The resulting “bundle-of-rights” theory of ownership does not describe an entitlement with any fixed content so much as a process through which conflicts between owners and nonowners (or owners and society as a whole) are worked out.Footnote 20
By contrast, a Kantian approach to property theory is bound to disappoint if we expect a theory of property to grapple with determinate cases and generate specific answers to problems relating to the use and distribution of resources. Take the problem of poverty. For the Kantian, poverty—and especially the material dependence on others that is its necessary correlate—is a central problem for property theory, but it is necessarily a problem for public right rather than private right.Footnote 21 For Kantians, it is essential to draw this distinction because of their concern with the grounds of legitimate authority; there are some questions that are properly taken up just by the state, and others that are properly within the jurisdiction of private actors alone. Property instrumentalists do not generally proceed, as Kantian do, from a theory of the state. Rather, as I discuss above, they simply address substantive issues—of fairness, welfare, and so on—directly. The state is just another actor (albeit a very powerful one) to carry out whatever goals we have set collectively. For the Kantian, however, the state is a fundamentally different kind of actor from private individuals—it is subject to different constraints and empowered to do things that we are not.
This distinction between public and private right is crucial to Kant's understanding of the problem of poverty and the role of law in addressing it. For Kant, all private rights are derived from our basic right to independence, which for Kant means the capacity to set and pursue our own purposes, and so the freedom not to be subject to the choices of others.Footnote 22 A right is an entitlement that restricts the conduct of others that would interfere with this purposiveness. For Kant, the only internal limit on private rights is that they must be consistent with the formal freedom of others to set and pursue their own ends with their means.Footnote 23 Property rights do not interfere with freedom, according to Kant, because no one has a prior right to any external thing, and so property rights, conceived as the right to exclude others from external objects, do not interfere with anyone's capacity to put their own means to ends of their choosing.Footnote 24 This idea of independence not only gives private rights their structure but also limits what the state can force us to do for others. The state cannot impose duties on us to serve the private purposes of others—duties, in other words, to confer benefits on others—because that would subject us to another's choices and so make us merely a means to someone else's ends.Footnote 25 At the level of private right, this means that the form ownership takes is unaffected by the material circumstances of others.Footnote 26 Thus, on the Kantian approach, ownership entails a right to exclude others without regard to their interests and needs.Footnote 27
Owners are not directly constrained by the needs of others, on this view, but the state is. At the level of public right, the state must provide for the poor.Footnote 28 Why is the state, for Kant, obligated to care for the poor while private individuals, at least from the perspective of right,Footnote 29 are not? The answer goes to the very foundation of the state's authority in the united will of its citizens. The state has authority only where it can be said to speak and act in the name of everyone. Individuals can thus be subject to law only through the idea of a united will.Footnote 30 We cannot say that people “share” a will where some are materially dependent on others. No one could agree to be entirely dependent on someone else, as might occur where nonowners cannot rightfully access the space or the resources they need for survival without the owners' permission.Footnote 31 Thus the state has a duty to guard against poverty in order to maintain the very possibility of political authority.Footnote 32
One important misconception about the Kantian project is that the separate spheres of public and private authority do not intersect; i.e., that owners have absolutely no social obligations, and the state bears the whole burden. In fact, the Kantian story posits a very important relationship between private and public right: public right (political authority as such) requires that the state guard against material dependence, and property rights depend on public right. The enforcement of property rights depends on political authority, according to the Kantian, because no one through his unilateral will can impose a duty of exclusion on others. This does not have to do with the actual burdens that property rights impose.Footnote 33 As Ripstein explains, “your right to freedom is at issue when others change your normative situation, even if you have other options so that the situation is not burdensome.”Footnote 34 Property rights are merely provisional in a state of nature because “a unilateral will is not a law for anyone else.”Footnote 35 The enforcement of property rights thus depends on the state's protection of the poor, insofar as property rights cannot be enforced in the absence of a united will.
Kant thus proposes a division of labor in responding to the problem of poverty. At the level of private right, ownership constrains others to exclude themselves from things they do not own, whatever their interest in using those things. It is only at the level of public right that the state has the authority—and the obligation—to guard against material dependence. And because public right depends on the state's addressing the problem of material dependence, by, for example, imposing taxes, restricting use, exacting accommodations in the interests of the public, and so on, the state can call on owners to help out.
III. TOO MANY “WRONG” ANSWERS
What we see so far is that the Kantian approach, unlike most theories of property, puts the state in charge of dealing with the moral problems generated by ownership. Instrumentalists are likely to find the division of labor that Kant proposes between private and public actors troubling enough.Footnote 36 One objection (from a progressive outlook) is that looking to the state to solve the problems produced by ownership is a less reliable solution than directly tailoring the position of ownership to constrain the selfishness of owners.Footnote 37 We may frame this objection as a pragmatic concern about pitting individuals against the state: Even if the state has an obligation to care for the poor, what ability do individuals have to enforce the state's obligations? This concern, however, does not tip the scales in favor of instrumentalism and its more flexible understanding of ownership in which private law is available to pick up the burden of distributive justice where public law fails. After all, treating social obligation as a matter of private right still requires recourse to public institutions to enforce those obligations.
Pragmatists should not make too much of the difference between leaving it to the state as a matter of public right to provide social goods and reading social obligations directly into the nature of ownership. True, the poor cannot compel the state to meet its obligations to them. However, if they are suing private owners directly for “abuse” or excesses, or even if they are enabled to help themselves, they still must rely on the state's apparatus, for example, the judiciary and the bailiffs who enforce court orders.Footnote 38
The instrumentalist objection, however, runs deeper than this. The concern is not only that the Kantian approach leaves it to the state to resolve the moral problems introduced by private ownership (such as poverty) but also that it fails to specify how the state must discharge its obligations. There are no safeguards against “wrong” answers to moral problems like poverty, with the result that our public institutions may come up with solutions of varying quality. Kant does, of course, distinguish between the ideal case, in which everyone has civil independence, and the nonideal case, in which some are materially dependent on others.Footnote 39 But the Kantian account does not provide specific direction to a state as to how it might perfect its authority—by specifying what policies would ensure that no one is in a state of material dependence.Footnote 40 To many egalitarian property theorists, the indeterminacy of the demands of public right lead us to accept too wide a range of property systems as legitimate uses of state authority.Footnote 41
The concern that the Kantian approach fails to prevent “wrong answers” proceeds from a fundamentally different view of what property theory is meant to achieve. Most instrumentalists assume that the object of property theory is to engage and to generate answers to fully determinate conflicts involving the use or distribution of resources. If this is what property theory is supposed to do, it only follows that a theory should be evaluated with reference to the attractiveness of the policies and laws it prescribes. The Kantian approach, measured by the expectations of most modern property theorists, is problematic because it does not offer specific answers for us to evaluate. It does not prescribe specific policies and is consistent with a wide range of responses to poverty, welfarist and otherwise.
But this is because the Kantian account is concerned with the grounds of legitimate authority and not with providing guidance for how best to exercise that authority. In so doing, it clearly separates matters of political choice from the theory of law. The Kantian position articulates only the kinds of questions that are within the state's mandate rather than any standards the state must meet in discharging its mandate or any particular outcomes it must achieve.Footnote 42 There is an ineliminable role for policy-makers to determine how precisely to exercise that authority. And although Kantians would probably applaud policy-makers who follow the demands of justice when exercising their authority, they would still insist that the nature and legitimacy of property law and institutions do not turn on this. By clarifying what it is that Kant was doing, we may overcome some of the objections to the Kantian approach.
But why do Kantians think it is so important to work out the distribution of authority between state and owner and the grounds of that authority? Some property theorists might initially be skeptical that the Kantian division of labor between private and public actors actually matters. After all, at the end of the day, a Kantian approach accommodates a wide range of burdens and limits on an owner's authority from a variety of sources. Ripstein makes clear that the state can legitimately tax property to fund a range of social programs, curb dead-hand control over property (what modern property scholars call perpetuities problems, in which owners attempt to impose perpetual conditions on the use of land), limit owners' rights to the airspace above their land, and much more besides.Footnote 43 One of the most interesting chapters in Ripstein's book is “Roads to Freedom,” in which he explains how public roaming rights and in-kind contributions such as road building are all consistent with the Kantian idea of ownership as a right to exclude.Footnote 44 These limits and burdens on owners are not entailed by the idea of ownership itself but are simply the operation of the state's commitment to safeguarding the conditions of equal freedom for all. To the skeptic, it may appear to be merely a philosopher's game of semantics to call these the operation of public right rather than private right.
I focus here on two ways in which the Kantian project is relevant to contemporary property theory: first, the distribution of authority that Kant posits crucially guards against what I call the problem of cross-contamination—the contamination of public decision-making by leaving social choices about how to guard against dependence to private owners and the contamination of private decision-making by subjecting private owners to the purposes of others.Footnote 45 Second, by setting out the bases of the state's and owners' authority, the Kantian approach provides a distinctive answer to what I call the “why me” question: it explains not only why the state has the authority and obligation to guard against material dependence but also why owners can be drafted in support of the state's agenda.
The problem of cross-contamination has not received full consideration by contemporary property theorists, particularly in relation to public decision-making.Footnote 46 It arises because there is no single correct answer to the kinds of questions that Kant thinks are up to the state to resolve. For example, there is no single correct answer about how to provide for the poor—or even about who is poor.Footnote 47 If there were a single correct answer, then it would be plausible to devise a theory of law (like the one favored by instrumentalists) that focused exclusively on determining what that right answer is. The state would have no special role to play that ordinary citizens could not fill just as well; we could allocate tasks between public and private actors simply on the basis of expertise or efficiency. But Kantians insist that where there are real policy choices to be made, public decision-making is crucial. This is because the basic problem of political philosophy for Kant is the preservation of individual freedom as independence. If we allow private parties to make policy choices, this undermines the freedom of others, because they are then subject to the discretionary choice of others.Footnote 48 If we preserve such choices as public choices, however, to be made by public officials in their public capacity, this does not threaten the freedom of others in the same way. Public officials are not free to decide matters just as they would like; they are required to make their decisions in a way that is consistent with their role as representatives of the people as a whole.Footnote 49
We should add that it is not acceptable to the Kantian account to say (as many realists would do) that courts can guard against this contamination by weighing in when owners come up short. The mistake here is once again to mischaracterize the issue as one of correctness of the answer (which is the sort of issue that courts are competent to deal with) rather than a matter of choice among policies (which public decision-makers ought to make in the name of all).Footnote 50
The Kantian division of labor between private and public right guards against contamination in the other direction, too; that is, the contamination of private authority by the subordination of the owner's will to the purposes of others. The Kantian framework explains why owners' social obligations do not amount to their subordination to the private purposes of others. The public-private division of labor in the Kantian project relieves owners of any obligation of deference to others' private agendas. Private individuals might benefit from the exercise of public right obligating an owner to allow, for example, nonowners to cross his land when public roads are impassable or to pay taxes in support of public schools. But the Kantian analysis, in grounding these obligations in public right rather than in the idea of ownership itself, shows that what is in fact required of owners in such circumstances can be characterized as deference to public right and so public purposes.
Perhaps the most important contribution of the Kantian framework to contemporary property theory is the distinctive way in which it legitimizes the burdens on owners to contribute to the provision of public goods. The Kantian position (unlike, say, the libertarian one) provides an answer to the question of why we should support institutions that assist the poor, provide public health care and education, and so on. Why, an owner might ask, should I open my land to you or pay taxes in support of public schools? The argument is not just that it is morally arbitrary for an owner to have great wealth and others not to have it. Rather, it is that the ground of her claim to own the things she does requires the state that affirms that ownership right also to ensure that the basic conditions of freedom as independence are met for all.
The justification the Kantian framework offers does not depend on owners' accepting the value of countervailing social ends. It does not appeal to an owner's solidarity with community,Footnote 51 nor does it follow from some settling of accounts in which owners “owe” what they have received, directlyFootnote 52 or indirectly,Footnote 53 back to the community. Rather, the answer the Kantian gives silences complaint because it is formulated in a way that precisely reflects the kinds of conditions that owners must accept: the state's mandate to guard against material dependence is itself a precondition to the enforceability of the very property rights that owners assert. The authority of the state to resolve these questions as a matter of public right entails its ability to call on owners, through taxation or in kind, to cooperate. Owners are left to take up their disagreement with the particular policies of officials through the political process.Footnote 54
Thus, in order to justify the claims the state makes to tax us, we need not show that ownership itself is an other-regarding institution. Indeed, on the Kantian view, ownership seems to permit a kind of selfishness that is then reined in on other grounds by our public institutions.
IV. ELIMINATING “RIGHT” ANSWERS TO SOCIAL PROBLEMS
I am trying to show that some of the concerns that instrumentalists are likely to have with the Kantian approach are based on differences in thinking about the aims of property theory. By inquiring into the basis and structure of authority, the Kantian project does not prescribe particular solutions to the problem of material dependence and so does not guard against “wrong” answers. But it does perform other, important normative work: it articulates the kinds of questions that the state and owners have the authority to consider while at the same time accounting for the social obligations of owners.
But there is another, deeper set of concerns that instrumentalists are likely to have: not only does the Kantian approach not provide safeguards against wrong answers to, for example, problems of poverty and inequality, it may also eliminate what instrumentalists may see as “right” or morally desirable answers. For the Kantian, the state's power is legitimately used only to create and maintain the conditions of formal freedom.Footnote 55 This means not only that property law is not a vehicle for distributive justice, as is so often assumed, but also that the state itself is not a vehicle for advancing our interests and building our capabilities. The obvious question for progressive theorists, then, is to ask just how much a state can do to achieve outcomes consistent with the demands of egalitarianism if the only legitimate rationale for its endeavors is the preservation of independence, understood formally, and the conditions necessary for it.
The answer to this is not as clear as it should be. Ripstein makes the case that many of the welfarist commitments typical of modern states can indeed be cognizable within a Kantian framework. The state's duty to guard against dependence can alone account for universal health care,Footnote 56 public education,Footnote 57 and the regulation of working conditions, according to Ripstein.Footnote 58 With sufficient ingenuity, it would seem that we might be able to recast in Kantian terms quite a lot of what modern states appear to do in the name of human flourishing and equality.Footnote 59 In that case, egalitarians could not complain that “right” answers are excluded, although they might then object to the Kantian project as a mere exercise in recategorization. For one thing, it seems to get matters backwards. The bases on which modern democracies generally articulate the grounds for redistributive programs and other measures designed to minimize the effects of private ownership (e.g., environmental legislation, progressive taxation, land redistribution, public access rights) are not legitimizing grounds for Kant. It might seem somewhat artificial—and hence unattractive—to characterize projects clearly pursued in modern democracies for reasons to do with human flourishing, reducing inequality, and so on as exercises in preserving independence. And the implications of this view for the way in which legislators reason are also distinctly unappealing in today's context. Can we plausibly insist that legislatures restrict (or at least aim to restrict) the terms of their debate in advance of passing legislation to freedom-based reasons for and against a program?Footnote 60 Few could imagine debates about environmental regulation or tax law that did not incorporate cost-benefit analysis, for instance.Footnote 61
But an exercise in recategorization without real limits on social welfarism is not at all the way that Ripstein sees the Kantian project. As he puts it, “Kant's narrow conception of the legitimate uses of state power . . . does, however, preclude the familiar suggestion that such programs as universal public education and health care are unstable stopping points on a path to a more thorough equalization of benefits and burdens in general.”Footnote 62 According to Ripstein, the state's mandate to provide formal equality of opportunity does not translate into a general license to engineer substantive equality.
Egalitarians think (plausibly enough) that it is morally arbitrary for some to be born with advantages that others do not have (whether it is wealth, talents, etc.), so on grounds of justice these differences are unjustified, and it is the job of the state to allocate goods in a way that respects all people's equal moral claim to them. Kantians simply do not share that starting point. They argue that whatever we might think about the best allocation of goods, the state does not have the authority to redistribute wealth in this way. The disagreement, at root, is one about the state's authority rather than about the merits of substantive equality as such. Thus instrumentalists are quite justified in their suspicion that at some point what they might consider to be “right” answers to the problems of poverty and disadvantage will be excluded.Footnote 63 While Ripstein has worked very hard in Force and Freedom to show that Kantians and those concerned with social welfare can be on speaking terms, the latter's concern with and the former's silence about outcomes are obstacles to any lasting union.Footnote 64
V. JUSTIFICATORY GAP
The promise of the Kantian division of labor between public and private authority is that we might simultaneously satisfy the demands for individual freedom of property owners and the basic needs of others. Private right guarantees the right of owners to exclude all others from their property without regard to their interests or needs, while public right puts in place institutions that ensure that no one shall fall into a state of dependence on others. If the state takes care of the moral problems generated by private property, a robust right to exclude in the private sphere may in fact be perfectly consistent with progressive commitments to social welfare.Footnote 65 But, as shown above, the demands of public right are very flexible; although some regimes might put in place substantial public institutions that provide significant public services to all, other regimes might provide very little indeed, leaving the great majority of people without access to many of the basic resources required for human flourishing. Instrumentalists are unlikely to have confidence in the Kantian's account of a division of labor if it does not at the same time specify the kinds of outcomes the state must produce. Without a more robust—that is to say, more specific—theory of public responsibility, progressive property theorists are likely to feel confirmed in their view that any solution to problems of poverty and inequality must be located in an idea of ownership as an other-regarding institution.
In what follows, I suggest how a Kantian approach might bear some of the pressure for social solidarity within the idea of ownership while maintaining the claim that “[t]he relation of property to setting and pursuing purposes underlies both its rationale and its structure.”Footnote 66 No amount of reworking will bring the Kantian idea of property rights fully into line with the egalitarianism of many progressive property theorists. That is because, at root, property rights need not be affirmed from the point of view of substantive equality for Kant but rather are justified just by appeal to freedom. There is, however, room within a liberal account such as Kant'sFootnote 67 for a more flexible and less austere notion of ownership, one that more readily harmonizes interests with rights. What I show below is that a right to exclude is not conceptually required in order to extend to external things in the world our capacity to choose our own ends.Footnote 68 Something less than a right to exclude others with respect to a thing, namely, a right that others defer to one's agenda-setting authority, is consistent with the Kantian commitment to extending freedom to the external sphere (or so I argue below). This will not get us as far as an other-regarding idea of private ownership, but it does leave open the possibility that nonowners can make some choices about someone else's property that advance their own purposes without at the same time interfering with owners' freedom.
For Kant, ownership's rationale—the preservation of our formal capacity for choice with respect to external things—necessarily entails that ownership have a certain structure and no other: the right to exclude others with respect to a thing.Footnote 69 A Kantian theory of ownership thus promises a precise fit between the form that ownership takes and the reasons that justify it. I am arguing, however, that Ripstein does not advance a complete argument for why exclusion is required to preserve our capacity for choice with respect to external things. That is to say, Ripstein's premise—that formal freedom gives ownership rights their structure—admits of another conclusion: rather than a right to exclude others, an owner has a right that others defer to her agenda. Where I think the traditional Kantian approach goes wrong is in its assumption about the scope of an owner's authority required to preserve the priority of the owner's choice relative to the choices of others. The traditional Kantian approach assumes that every decision about a thing must be the owner's decision in order to maintain the formal priority of the owner's choice relative to the choices of others. In what follows, I argue that owners have no freedom-based grounds for complaint so long as every decision they make is treated as authoritative.
Let us start with Kant's rationale for ownership. Taking as given Kant's concern with freedom,Footnote 70 some form of ownership must be possible in order to extend our capacity for setting and pursuing our own purposes (our capacity for choice) to the external sphere. It would be arbitrary and hence unjust to restrict our capacity for choice by denying the possibility of property rights in the absence of any freedom-based reason for doing so.Footnote 71 So there we have the basic rationale for owning things, according to Kant: freedom demands the possibility of choice-making authority with respect to things in the world. But what kind of an entitlement is needed to preserve this authority? For Kant, an entitlement is a restriction on the conduct of others that protects a person's capacity for choice. Crucially, entitlements are always relative for Kant; it is not a person's autonomy as such or self-mastery that Kant sets out to protectFootnote 72 but rather her standing relative to others to make her own choices and so not to be subjected to the choices of others. This is what Ripstein calls freedom as independence.
Take the basic case of a person's innate right to freedom. There are two kinds of interference by others that this innate right properly constrains. Ripstein describes these in terms of injury and use.Footnote 73 A person might interfere with another's right to freedom by preventing her from setting and pursuing her own purposes (e.g., by maiming her). He might also interfere with her innate right simply by using her for purposes that are not her own, even if he does not get in the way of purposes she has set for herself or will in the future set for herself.Footnote 74 This explains why it is wrong for a doctor to have sex with a comatose patient even if the patient is certain never to find out about it or to suffer any harmful effects. By using his patient without her consent, the doctor has subjected the patient to his choice and so interfered with her freedom. Given Kant's concern with freedom, it is straightforward why we have a right to exclude others from our bodies/ourselves.
Traditional Kantian analysis assumes that we can make a very similar argument in the context of property rights. But there is an additional step in the argument when it comes to property rights that is not needed in the case of innate right. In the case of innate right, using a person as a means to your ends is precisely what we mean by subjecting them to your choice. It is not that the latter proposition (a person is subject to your choice) follows from the former (you use a person's body as a means to your ends without their consent). Rather, the two propositions are identical because a person is her body and so to subject her body to your choice simply is to subject her to your choice and so to interfere with her freedom.
Can we reason the same way about what Ripstein calls “harmless trespasses” to property: Is it one and the same thing to subject an object to your choice and to subject its owner to your choice? Take the case of a person who naps on my bed while I am out without leaving a trace of his presence or interfering with any actual purposes or plans of mine. That person undeniably subjects my bed (and house) to his choice. But in so doing, does he subject me to his choice in the same way that the doctor, in using his patient's body without her consent, subjects her to his choice? In order to insist on ownership as a right to exclude others, the Kantian must be able to show that there is an equivalence between the proposition that a thing is subject to your choice and the proposition that its owner is subject to your choice. This requires some further argument, however, because for Kant things are external to people and do not form a part of them.Footnote 75 What Kant must show is that to use a thing without an owner's consent is a usurpation of her role as owner and thus a threat to her authority (and so her freedom). If our concern is to identify what counts as a threat to an owner's authority, we need to be clear about what that authority is in the first place. The Kantian cannot start from the premise that any use of a thing is a threat to the owner's authority, for this is the conclusion that the Kantian needs to defend.
What, then, is the owner's role? Freedom requires that an owner have the authority to set, pursue—and revise—her purposes with respect to the things she owns. Her choices about a thing must, in other words, have priority relative to the choices of others, and the form the entitlement takes must preserve that priority. But what does it mean for an owner's choice to have priority over the choices of others? Does it mean that every decision that is made about a thing must be hers?Footnote 76 Or does it mean just that every decision she makes is authoritative? If the concern with priority of choice is purely a formal one, then it seems that there is no reason to prefer the former interpretation over the latter. Here is why. An owner's choice has priority relative to the choices of others if each time she makes (or revises) a choice, she is entitled to ignore the interests others have or the purposes they may have set for themselves using her thing, and if the choices she makes are taken to be binding on others. The choices others make about an owner's thing on this account have no normative status, at least as far as the owner is concerned.Footnote 77
In this way, we can preserve the formal priority of the owner's choice simply by recognizing that her decisions about a thing are authoritative every time and by treating all decisions that others make as entirely subordinate to hers. The owner's role is not to make every decision about a thing, which would indeed require the protection of a right to exclude. The owner's role is rather to make authoritative decisions about things—to set the agenda for the thing—and so to regulate the kinds of use that others can make of it. This requires the protection of a different kind of constraint on the conduct of others. It requires that others defer to her authority every time.
The argument I am making assumes that Kant's concern with the priority of an owner's choice is purely a formal one. Of course, the case for a right to exclude would be much stronger if we were to view freedom and domination from an empirical standpoint. It would also be much stronger if we took property rights to protect the owner's relationship to a thing rather than the priority of an owner's choice relative to the choices of others. From both of these perspectives, it may well follow that exclusion is the only form of right that would do to protect owners' freedom. Finally, the case for exclusion can perhaps most easily be made by giving up entirely on closing what I call the justificatory gap—by acknowledging that exclusion is simply a cost-effective way of structuring property rights and bears no precise relation to the nature of the owner's position.
The first kind of argument that supports an exclusion-based understanding of ownership is one I associate with Philip Pettit's idea of freedom as nondomination. Pettit's idea of freedom, which he describes as a republican one, looks, at least superficially, like the Kantian's: Pettit is also concerned with our independence from others and not our personal autonomy or self-mastery as such.Footnote 78 But Pettit understands threats to our independence in empirical and not purely formal terms.Footnote 79 It is the effect that nonowners have on the context within which an owner operates that makes so-called harmless trespasses so problematic on this “republican” idea of freedom.
I may as a rule go out for lunch every day, but if you are at liberty to use my desk during my lunch hour, that interferes with my freedom, because your presence changes the context within which I, as the owner, exercise my authority. It may be that from a formal standpoint, your choices have no normative significance for me, and I can carry on as if you (and your choices) simply did not exist. My authority—the kinds of decisions I am empowered to make—is in no way constrained by your presence, although the context within which I exercise the authority is changed. But from an empirical standpoint, your very presence worsens my situation, regardless of its effect on my actual choices, by limiting the options available to me: if I were to come back early from lunch, I could not carry on as I could if you were not there, no matter how quickly you scamper away. My real powers to revise my plans would suffer because the range of options available to me would have shrunk. If any interference with the context within which an owner acts counts as an interference with her freedom, then a right to exclude is clearly required. It is only by completely excluding others from the thing itself that we preserve the widest range of options for the owner.
Kant (like Ripstein) clearly disavows this empirical standpoint on what counts as domination. Kant's concern, according to Ripstein, is to protect the formal priority of an owner's choice rather than to protect her against the diminution of her range of options.
Kantians would also disavow personality-based theories of property, which offer another form of argument in support of the idea of ownership as a right to exclude.Footnote 80 According to Hegelians, property is the embodiment of a person's will in the external sphere. Hegel saw the appropriation of things, which lack wills of their own, as the destiny of the will: “A person must translate his freedom into an external sphere in order to exist as Idea.”Footnote 81 This account of freedom requires a certain understanding of the relationship between people and things, namely, the mastery of things. A right to exclude is crucial on this view, because it is only when others are excluded from a thing that the thing, lacking a will of its own and empty of any other's will, is fit to embody the owner's will. The importance of exclusion on the Kantian approach would be understandable if ownership were meant to preserve our capacity to master things and bend them to our will. In other words, it would make perfect sense to think that exclusion is crucial if we were to think of ownership in terms of our relationship to things. After all, any use by anyone else, however insignificant, necessarily interferes with my mastery of things; use by another means that my will does not solely animate the thing.Footnote 82 But if we think of ownership instead as a position of authority that shapes relations among people, as the Kantian is committed to doing, this kind of argument for exclusion is no longer available.
The Kantian is also committed to steering clear of the most obvious way to overcome the justificatory gap between the form of ownership and its rationale, that is, by appealing to the practical advantages of maintaining such a gap. Thus most contemporary defenders of the right to exclude frankly acknowledge the gap between the right to exclude and the interests they think property is meant to protect.Footnote 83 But their claim is that a right to exclude is a fairly practical way of protecting our interest in using things without requiring others to know anything about us or our uses for the thing (which would be very costly).Footnote 84 Henry Smith and Thomas Merrill, in particular, extol the information-cost savings of a right to exclude over a more fine-grained approach to ownership that balances our interests in different uses case by case.Footnote 85 There is no tight fit between the normative aims of property and its form, on their account; rather, the gap between form and substance is a deliberate one that enables a system of property to work while minimizing information costs to users (judges, potential trespassers, market participants).Footnote 86
Without resorting to either an empirical standpoint on freedom or a will-based account, the Kantian is unable to claim a precise fit between the form of ownership as a right to exclude and its rationale. What I have tried to show is that Kant's commitment to freedom can be paired with a less austere idea of ownership, one in which owners have a right that others defer to their authority rather than a right that others exclude themselves completely from the thing. This alternative view seems to capture the basic Kantian intuition that ownership is concerned with the priority of owners' choices relative to the choices of others but mitigates what some might see as the unduly antisocial nature of the right to exclude.
VI. CONCLUSION
Kant's theory of property promises to make a distinctive contribution to our understanding of the relationship of property rights to the interests and needs of others; it suggests that social solidarity is possible without compromising the integrity of property rights. The Kantian approach accomplishes this by maintaining a strict division of labor between public and private right. Its minimalist account of ownership as a right to exclude is embedded within a rich account of public right that legitimizes many of the initiatives we have come to associate with the modern welfare state. The Kantian approach thus emphasizes questions that are not the focus of most instrumentalist accounts: the basis of the state's authority to resolve the conflict between property rights and interests.
What the Kantian approach does not do is to consider or provide answers to another set of questions that are crucial to the egalitarian project: the ways in which property law can be engineered to bring about desirable outcomes. From the perspective of those concerned with substantive justice, the Kantian division of labor between public and private right cannot adequately account for the problem of dependence and so will inevitably fail to bring about the social solidarity it promises. Neo-Kantians are not, however, without the tools to minimize the conflict between rights and interests that a robust theory of private right appears to produce. At the very least, as I argue in this paper, there is room within the Kantian framework to bring the interests of others and the rights of owners into greater harmony. This is accomplished by conceiving of ownership not as a right to exclude others but as a right that others defer to the decisions that owners make.
