Rights Theory, Book/Article Reviews

How Liberty Upsets Property

We might want to say a person has full ownership in some object X iff she has:

  1. A right to exclude others from using X.
  2. A right to use X.
  3. A right to compensation from those that destroy or damage X.
  4. A right to modify, waste, or destroy X.
  5. A right to income from the use of X or forgoing of the use of X.
  6. An absence of term–these rights are of infinite duration.
  7. A power of transfer–the power to transfer these rights to others by consent.
  • NB: Call each of these, 1-7, an incident of a property right.
In this excellent essay, (read its final form here,) Gerald Gaus argues for a number of points, including:
A. Classical liberals do not need to hang their theory on the idea that every should have full ownership, so described.
B. In fact, classical liberals can’t say that. Liberty upsets full ownership. If people have liberty, they will tend to fragment these incidents. For example, an owner might grant a historical board the right to regulate modifications to the exterior of her home. Or an owner might sell her right to live in a house by renting it to others. Etc. Over time, in a free society, property rights in most things would tend to become fragmented.
C. Most of the arguments that others (such as Lomasky, Locke, Kant, Hegel, etc.) give for justifying property rights do not really justify full ownership, so defined, but at most justify some of these incidents of property.
D. Most of the arguments that one might give for justifying private property will not allow for absolute rights. The boundaries of what counts as a property right, or the cases in which a property right becomes a liability right or something weaker, will explain why these rights cannot be absolute. (Also, I’d add: why property right systems have to be publicly justifiable and why this opens the door for social justice-type concerns.)

 

Gaus concludes:

 We saw that, while this argument seems plausibly to support the idea that each person has an extensive domain in which to lead her life in her own way, based on her own values, projects and ends, it does not lead to the ideal of full ownership; to be maximally responsive to a person’s ends and values, it would seem a system of property must allow people to devise domains that best suit their ends and purposes, and this very ideal will lead to fragmenting property. But while this ideal does not lead to the classic idea of full ownership, it does, I think, endorse a system of strong and extensive property rights. It requires a system of strong property rights insofar as, whatever incidents are part of one’s domain, unless these rights are weighty, they will not provide a secure basis for living one’s life as one sees fit. To grant property rights, but allow that these are easily overridden by other moral and policy considerations, hardly makes them a crucial tool in living one’s own life in one’s own way. And of course in a more nuanced account of strength.

 

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