Private Property


Daniel Attas

What is the right to private property? What are its grounds? What is its scope and extent? In particular, do government regulation and taxation, as such, violate private property? These are contentious issues. At one end, for libertarians, property is itself foundational, hardly in need of any justification at all. Self-ownership, a property in one’s own body and mind, is considered the basis of all rights. At the other end, some claim that all property is theft; there can be no grounds that would justify the exclusive rights of some over resources that everyone could conceivably enjoy. In between, liberal egalitarians recognize a right to hold personal property. But what exactly such a right amounts to remains vague, if not in legal practice, at least in theory. To the question of whether taxation violates ownership, some respond simply “yes” (Nozick 1974; Epstein 1985), others simply “no” (Murphy and Nagel 2002) and yet others “no,” but it takes them a great deal of intellectual acrobatics to show that it doesn’t (Waldron 1988; Christman 1994; Fried 1995; cf. Attas 2006).

In what follows, I aim to trace two historical strands of development of thought about property. Though both strands set out to justify property, and though they were always in dialogue with each other, they discuss two distinct concepts, and accordingly, the kind of justification they provide is markedly different. That they were, and still are, using the same terms, is obviously not very helpful for clarifying the important issue of the meaning, grounds and limits of whatever it is we wish to call property. So one purpose of this essay is to set these apart as two distinct concepts: on the one hand, the regime view of property as a system regulating the control of assets, and on the other the entitlement view of property as an individual (natural) right. These have separate sorts of justification, distinct foundational values they are aimed to advance and different compositions.

It is not unusual to see property as a bundle of liberties, claims, powers and immunities one holds with respect to certain assets. When so describing property, one often refers to Honoré’s noted list of incidents. This comprises 13 kinds of claims, powers and immunities often included in the notion of private property (Honoré 1987). Notwithstanding the air of haphazardness conveyed by this list, the items therein can be arranged in a more regimented form. These include control rights (possession, use, management), income rights (to the fruits, profit and rent), transferability (the power to alienate, transmit by inheritance, liability to repayment of debt) and continuity (security, residuary character, absence of term) (Attas 2006).

Many writers on property, primarily (but not only) libertarians, seek to justify what is sometimes called “full liberal ownership.” That is, the most extensive set of incidents associated with the concept of property—the full rights of control, income and transfer. Yet, as I aim to show, the sort of justification provided for either a natural property right or a property regime quite clearly fails to establish this sort of all-inclusive property. A justification of property may seem to endorse full liberal ownership only when one equivocates the two views.

The structure of this chapter is as follows. Section 1 expounds on the regime view of property and the limited conception of property it can justify. Section 2 does the same for the entitlement view. Section 3 investigates the possibility that the best regime in terms of valuable social goals happens to be such that respects a conception close enough to full liberal ownership. Section 4 describes the failed attempt to justify full liberal ownership by fusing together the regime and entitlement views.

1. Property as Regime

There is an important tradition of property discourse that focuses on justifying a property regime. In effect this sort of justification boils down to an explanation of the function of such a regime, the social values it tends to promote. Beginning in the seventeenth century and up to our present age, I shall indicate how thinkers in this tradition point to the values of peace or stability, prosperity, equity or fairness to justify a regime of rights assigning exclusive control of assets to individuals.

According to Samuel Pufendorf, the original God-given state of the world is one of a perfect liberty of all to use and consume. Such an original state does not necessitate instituting property. To see why, Pufendorf directs our attention to the behavior of animals. Like humans, animals too are free to use and consume, yet they are incapable of such dominion as property requires. Though some animals might respect physical possession, property requires the recognition of continued entitlement even when the asset is not under one’s physical control. Since this goes beyond what we might expect from animals, it goes to show that property does not necessarily follow from the original state.

Nevertheless, a state of perfect liberty is bound to lead to conflict; yet God gave no instructions as to how humankind ought to regulate such free use by all. “But it was left to Reason of Men to determine, what Measures should be taken to prevent any Discord that might arise amongst them from the exercise of this right” (Pufendorf 1672: 320–22). Reason may advise “property” as a means to settle conflict, but there are still a lot of details to be worked out about the precise form such property must take before it can be made at all practical, and these can only be resolved by mutual agreement. Still, whatever form will be agreed upon will be justified “according as the Peace of Human Society seem’d to require” (ibid.). So it is not any special relationship between individual and object that justifies property rights or their extent, but a society-wide interest in preserving peace that justifies rules for the assignments of rights over objects.

David Hume echoes a similar concern. Society provides man with many benefits required to overcome his natural incapacity to deal with the challenges and threats that confront him in his solitary state. Joining forces with other men amplifies their power, a division of labor generates superior ability and mutual support provides greater security. To counter the natural partiality of man that endangers the peace and stability of society, and with it all the advantages society affords, the artifice of justice and property is established by convention (Hume 1986/1739–1740: 539ff). Rules setting out exactly what kind of control individuals may expect to have over objects will reduce misunderstanding and conflict.

John Stuart Mill also argues that the original function of the institution of private property was not utility but the preservation of peace (Mill 1994/1848: 7). Once established however, the institution of private property receives its justification from the greater utility it engenders in comparison to alternative regimes of common ownership. Moreover, the precise form property will take—for example, the extent of the right of capital to a share of the product, laws regulating inheritance and property in land, and so on—are to be determined primarily by their tendency to promote utility.

Inquiring about whether the individualistic regime of private property should be superseded, by comparing it to a socialistic regime of communal property and equality of income, another utilitarian, Henry Sidgwick, concludes that “there is no principle of abstract equity” that morally requires private property. Moreover, were a socialistic system feasible without too much loss, present inequalities due to the capitalist system would surely be unjust. Difficulties of transition from one system to the other would be no more serious than those involved in the abolition of slavery (yet, presumably, no one would deny the injustice of the latter on that account). Therefore, the case in favor of a private property regime can only be settled on the basis of economic (i.e., utilitarian) considerations. That is to say, the justification of private property must be sought in its greater efficiency and tendency to increase utility (Sidgwick 1903/1883, chs. 6–7).

Contemporary liberal theories of justice provide a further example of the regime view of property. For John Rawls, the choice of political-economic regime is determined according to how well its institutions may be designed to achieve our conception of justice. He promptly rejects the three regimes of laissez-faire capitalism, welfare-state capitalism and state socialism as incompatible with the principles of justice. The first of these is a system that respects full liberal ownership. Such a system, Rawls argues, secures merely formal freedom and is thus incompatible with fair value of equal political liberties and fair equality of opportunity. The second regime, that of welfare capitalism, embodies a more restricted form of property, but only for the sake of providing a decent minimum to cover basic needs. It is rejected on the basis of the great inequalities “in the ownership of real property (productive assets and natural resources)” it permits. The third regime, that of state socialism, recognizing no property in productive assets, is discarded only because it violates the principle of equal liberty. Thus the first three types of regime are rejected by Rawls without any regard to how well they embody private property. Indeed, the two regimes compatible with the principles of justice that Rawls proceeds to examine—a property-owning democracy (the means of production are controlled mostly by private individuals) and liberal socialism (the means of production are socially controlled)—are assessed, and the choice among these ultimately determined, by how well they enable the basic structure to uphold the principles of justice, regardless of whatever special relationships may be thought to exist between certain individuals and specific objects (Rawls 2001: 135–40. See also Clark and Gintis 1978: 302–25; Krouse and McPherson 1986: 119–38).

From Pufendorf to Rawls, the primary question this sort of justification addresses is why should anyone own anything at all? We assign spheres of control and entitlements to income according to certain rules insofar as these are a necessary condition of peace, or a means of maximizing prosperity or welfare, or of achieving equity or fairness. Only derivatively can it be asserted that an individual P should own a particular assetX. This follows merely because these are the rules of the regime that best promote this particular favored social function. The kind of entitlement thus justified, its extent and scope, are also determined by its instrumentality in achieving the goal.

The first quality required of such rights, so that they may serve the justifying function, is clarity. The boundaries of individual entitlements must be clearly demarcated so as to minimize conflict and allow efficient use. Perhaps also such entitlements must be exclusive, or else a clear division of powers with respect to the asset must be defined. Thus if it is unclear with respect to a certain resource who has powers of decision over it, who is to benefit from its improvement and how secure that benefit will be, many potential sources of conflict remain and perhaps also proliferate. Moreover, some clear incentives to improve the asset and to produce welfare to the benefit of all will be removed. Beyond that, however, the determinations of property remain an open question. How much one is to benefit from improvements to owned resources, and how secure these benefits must be, depend on how much is needed to motivate the average individual to put their assets into socially beneficial use. Thus taxes may be seen not as a limitation of ownership, but as an element in the complete account of individual entitlements (Murphy and Nagel 2002). Restrictions on use (zoning laws, conservation, safety and hygiene and so on), or on transfer (estate taxes, gift taxes, entailment, laws against selfenslavement), designed to increase stability, aggregate utility or fairness, collectively define the precise contours of property rights. Generally speaking, any bundle of clearly defined restrictions on control, income and transfer may be considered property rights, in the full unproblematic sense, when they follow from the social values the regime is intent to promote. In particular, nothing in this view of property, focusing as it does on the social values promoted by the regime, obliges us to espouse the notion of full liberal ownership as the only possible justifiable conception of private property.

2. Property as Entitlement

A second tradition of property discourse focuses on justifying property as an entitlement ornatural right. In effect this sort of justification sets out to provide reasons for the recognition of such aright, to point out the individual values it tends to protect or enhance for the owner. As I did in the previous section for the regime view, I shall now indicate how various thinkers in justifying property have appealed to several individual (rather than social) values. Focusing on the owner, these can be the guarantee of subsistence or needs; the promotion of individual welfare; enhancing autonomy or enabling unobstructed project pursuit; permitting the development of personality; and so on.

According to Hugo Grotius, when the world is held in common by all humankind, as it originally must have been, individuals can seize from the common stock for their own use and consumption. Depriving them of whatever they so took was considered an injustice. At this early stage of common use there is effectively present a regime of “natural equity.” However, this state can no longer continue once human society loses its simplicity in terms of lifestyle, goodwill and mutual forbearance. The development of elaborate forms of consumption intensifies conflict and requires clearly demarcated spheres of dominion or exclusive control (Grotius 1625, book II, ch. 2). At this point, reached long ago, private property becomes necessary to allow unhindered individual use and to promote welfare. It becomes “inconvenient” to persist in common ownership. Hence tacit consent is given that first occupancy establishes not merely a liberty to consume but a full-fledged individual entitlement. Individuals need this because some forms of consumption stretch over time—some things they want to save for later use, or they may have plans for these things to interact with other objects at different points of time to allow more complex interrelated forms of management and use. Nevertheless, these entitlements always remain subject to the original principles of natural equity, so that in cases of extreme necessity the rationale of self-preservation may override these individual property rights (ibid.: 91f).

John Locke’s discussion of property begins by noting that both reason and revelation concur that man has a right to self-preservation and therefore also to the natural resources necessary to the “support and comfort of their being.” Yet before they can be of any use or at all beneficial to any particular individual, he must first appropriate these resources. Thus Locke appears to be saying that private property in a natural resource is a necessary condition for beneficial use. Consequently, there must be a morally acceptable method to unilaterally acquire parts of the natural world and to make them one’s own. Famously, Locke bases the method of acquisition on the investment of labor, and restricts its scope by the proviso that enough and as good is left for others (Locke 1988/1689: 285ff). But whatever the means of original appropriation, Grotius and Locke similarly maintain that the real justification of property is its necessity for the beneficial use for whichever individual initiated a sort of relationship with the object, whether by laboring or by mere occupancy. That is to say, the benefit to the owner.

The justification of property might extend beyond the provision of subsistence, needs or moderate contribution to welfare. According to Loren Lomasky, persons “have a natural interest in having things.” Neo-Lockeans (libertarians of all stripes and colors) such as Lomasky insist that this interest amounts to the ability to employ the object in the furtherance of one’s project, perhaps in the pursuit of long-term life plans. Since control of such objects is a necessary condition of being able to pursue one’s projects, there is an interest not merely in having objects but also in being accorded property rights with respect to them (Lomasky 1987: 120–21).

G. W. F. Hegel’s justification of property, though more complex, is briefly stated: “The person must give himself an external sphere of freedom