Thursday, September 14, 2006

A justification of property

Just now, I'm busy working on a long-ish paper about property. I'm dissatisfied with the "ordinary" defenses of property, and am working on my own. Roughly, the idea is as follows:

What justifies P's claim to an object or thing x is her having concern for the thing.

This justification is a shallow justification. In fact, it's difficult to believe that it is a justification at all. All it says is that, given the presence of a certain affective state (namely, concern), what follows is that some Q (an individual, or the rest of us) has a duty or obligation to respect P's claim to Q. We want to know more. Maybe a lot more. More can be said.

In the next little while, I will try to roll out my reasons for thinking that a conative state is what is necessary as a basic justification for property. The first step is to narrow the scope of the paper, and make clear some of the assumptions that I will be working with. In subsequent posts I'll outline the strategies taken by a few others. The labour view (John Locke), an identity view (associated with Hegel and a few new defenders like Samuel C. Wheeler III), and a projects-based view (primarily associated with Loren Lomasky).

Objects and things

For the purpose of this project, I am only interested in the potential ownership of physical (corporeal) objects and things. Chairs, board games, a parcel of land, a house, all will do. An original work of authorship, copyrights, patents, and other intellectual (or incorporeal) property will have to fall by the wayside. So, too, will ownership of stock, and similar incorporeals. This isn't to say that this theory isn't able to capture these kinds of property as well, but it is to say that more or something different will need to be said to capture these kinds of property.

Control rights

In addition, I am only interested in a subset of claims someone might have to objects and things. A.M. Honore disentangled all the possible features and relations captured by the concept property and ownership. Amongst these things are rights to use, destroy, transfer, receive income from, bequest, and so on. He called the entire set of these rights a "bundle of rights," with each particular token a "stick." In legal circles, people talk of these "sticks" as "incidents," which is the other word that Honore used to describe them. Property is a complex bundle of rights, with many particular sticks (I think Honore had 12 sticks in total).

J.P. Day has further separated the entire bundle into two broad categories: control rights, and transfer rights. Control rights are rights to use the object, to destroy it, to have it, and so on. Transfer rights are rights to accrue income, to bequest it, to give it away, to sell it, and so on. This project is only interested in control rights, not in transfer rights. This is not because the story I want to tell won't justify transfer rights, it just might. But it looks like transfer rights may require additional premises. At the very least, transfer rights to objects are more controversial than control rights to objects. The topic is controversial enough at the level of control rights.

Property is a social fact

Property has its roots in brute possession. To "have" something is the primitive ancestor of "owning" something. Robinson Crusoe on his island might have a coconut, could fashion a suit out of twigs and leaves, could construct some utensils to hold water, and maybe make some rudimentary (or sophisticated) tools out of rocks, vines, and sticks. All of these he would have in his possession. He would not, however, have them as property. Property is a necessarily social concept. For Robinson Crusoe to have these objects as his property requires him to have at least one other fellow come ashore. With at least one other person, we can begin to ask whether or not Crusoe has property, and what justifies his claim to property over and above his mere possession of it.

To say that property is a social relation is to recognize the concept as a four-place relation. Possession is a two-place relation. P has x (where P is a subject, and x is an object). A justification of possession (if one were required) would convert possession into a three-place relation. P has x in virtue of M (where P is a subject, x is an object, and M is the ground or reason for P's possessing x). Since property is a necessarily social relation, we need to introduce a variable to stand in for at least one other person. P has a claim to x in virtue of M against Q. Q does not equal P (where P is a subject, x is an object, M is the normative reason for P's claim to x, and Q is a subject not identical to P).

Further, this is also to heed the insights of Hohfeld, who famously argued that a "rights" claim, which is, at bottom, what a property claim is, entails a duty on the part of at least one other person. Otherwise, we have the "power" or the "liberty" to use certain things, but not a "right" to it. A four-place relation captures this insight.

This might be controversial. The reason for this is obvious to those who have worked with the concept of "desert." Desert is ordinarily viewed as a three-place relation (P deserves x in virtue of M). Jan Narveson claims that it is not that. Narveson says that desert is a four-place relation just like the relation I have suggested for property. His reasons for saying this are several-fold, including the fact that, for desert to have concreteness, we need to specify from whom or what the thing deserved is to come from. Desert cannot be a "free-floating" concept. But this view is not popularly accepted. Robinson Crusoe on his island can "deserve" happiness, say, and that happiness needn't come from some person or group of persons, or an institution. Even if Crusoe were the last person on earth, he might still deserve things. For this reason, and a few others, desert theorists do not accept Narveson's conceptual story. If these people are right, then it's possible that people may have relations to objects in a similar way to the way they might deserve things. Namely, persons may have property even though no one else is around.

If the concept of property were similar to the concept desert in relevant ways, then this would be a problem for the view I'm pushing. But it is not. Desert has, if Narveson is wrong, at least some non-social tokens. When desert is specific (like "Patricia deserves to be loved by Quincy for so-and-so reason), then desert becomes a four-place predicate. Property, however, has no non-social tokens. For this reason, property and desert are not always conceptually related, and when they are, desert is just like property in being a four-place relation.

Levels of justification

Laurence Becker claims that there are three possible levels at which a justification can be aimed. At the general level, a justificatory story aims to justify a property system in general. At the specific level, a justificatory story aims to justify some particular mode a property system may take from private property, to collective ownership, to some mixture of the two, or something else. At the particular level, a justificatory story aims to justify some particular individual's claim to some particular object.

My project is aimed at the particular level. What I seek to do is to provide some reasons why P might have a justified claim to some x, a claim that entails at least a reason for Q (either an individual, or some group of individuals) to abstain from taking it. This reason may not be overriding. There may be other moral reasons or claims that others have on that particular x. Whether or not those reasons or claims outweigh P's claim is a separate question.

A justification at the particular level, however, has implications for the specific and general levels. If it turns out that P has good grounds to claim x, and no one else does, then that's a prima facie grounds to prefer a property system that at least recognizes P's claim to x. And if it is not defeated by some criteria for justice at the specific level, then that, again, is a prima facie reason to prefer a particular propery system in general. Thus, while the project is tailored to be a particular justification, it will have an impact on our justification at the broader levels.

Thus, I want to give an account of what might justify some particular subject P's claims to the control rights on some object x against the rest of us.

That's the limited scope of my project. More later.


Anonymous Anonymous said...

For the record, Robinson Caruso had "his man, Friday", as Defoe put it. So, not only did he own the coconuts, he owned the only other person who showed up to challenge him.

Real ownership is now and always has been the brute force of being able to defend that ownership in the face of opposition. That's the reality... ask any kid with lunch money in grade 3.
Ideally I would say that work and investment in an object defines ownership, but the truth is that any sculpter who spends his whole life carving a beautiful piece can summarilly have it taken from him without his consent by a stronger opponent. It's the definition of "stronger", not the definition of "ownership" that has been evolving.
Stronger now means more weapons, more laws in your favour, or more money in your bank account.
Like the old saying goes... "Lawyers, guns, and money." That's what really defines ownership.

(From Will)

3:46 p.m.  

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