## 1. Issues of Analysis and Definition



More than most policy areas dealt with by political philosophers, the
discussion of property is beset with definitional difficulties. The
first issue is to distinguish between property and private
property.



Strictly speaking, 'property' is a general term for the
rules that govern people's access to and control of things like land,
natural resources, the means of production, manufactured goods, and
also (on some accounts) texts, ideas, inventions, and other
intellectual products. Disagreements about their use are likely to be
serious because resource-use matters to people. They are particularly
serious where the objects in question are both scarce and necessary.
Some have suggested that property relations only make sense under
conditions of scarcity (Hume [1739] 1888, pp. 484-98). But other
grounds of conflict are possible: there may be disagreements about how
a given piece of land should be used, which stem from the history or
symbolic significance *of that piece of land*, whether land in
general is scarce or not. (Intellectual property provides an example
of property rules that do not respond directly to scarcity; moreover
unlike material objects, the objects of intellectual property are not
crowdable, for their use by any one person does not preclude their use
by any number of
 others.)[1]



Any society with an interest in avoiding conflict needs such a system
of rules. Their importance can hardly be overestimated, for without
them cooperation, production, and exchange are virtually impossible,
or possible only in the fearful and truncated forms we see in
'black markets.' This necessity is sometimes cited as an
argument in favor of *private* property (Benn and Peters 1959,
p. 155). In fact, all it establishes is that there ought to be
property rules of *some* kind: private property rules are one
variety. Some human societies have existed for millennia, satisfying
the needs and wants of all their members, without private property or
anything like it in land or the other major resources of economic
life. So the first step in sound argumentation about property is
distinguishing those arguments which support the existence of property
in general from arguments which support the existence of a system of a
specific kind (Waldron 1988).



There are three species of property arrangement: common property,
collective property, and private property. In a *common
property* system, resources are governed by rules whose point is
to make them available for use by all or any members of the society. A
tract of common land, for example, may be used by everyone in a
community for grazing cattle or gathering food. A park may be open to
all for picnics, sports or recreation. The aim of any restrictions on
use is simply to secure fair access for all and to prevent anyone from
using the common resource in a way that would preclude its use by
others. *Collective property* is a different idea: here the
community as a whole determines how important resources are to be
used. These determinations are made on the basis of the social
interest through mechanisms of collective
decision-making--anything from a leisurely debate among the
elders of a tribe to the forming and implementing of a Soviet-style
'Five-Year Plan'.



*Private property* is an alternative to both collective and
common property. In a private property system, property rules are
organized around the idea that various contested resources are
assigned to the decisional authority of particular individuals (or
families or firms). Thomas Merrill (2012) calls this 'the
property strategy' and contrasts it with bureaucratic governance
or the management of resources through group consensus. In a system of
private property, the person to whom a given object is assigned
(e.g., the person who found it or made it) has control over the
object: it is for her to decide what should be done with it. In
exercising this authority, she is not understood to be acting as an
agent or official of the society. She may act on her own initiative
without giving anyone else an explanation, or she may enter into
cooperative arrangements with others, just as she likes. She may even
transfer this right of decision to someone else, in which case that
person acquires the same rights she had. In general the right of a
proprietor to decide as she pleases about the resource that she owns
applies whether or not others are affected by her decision. If
Jennifer owns a steel factory, it is *for her* to decide (in
her own interest) whether to close it or to keep the plant operating,
even though a decision to close may have the gravest impact on her
employees and on the prosperity of the local community.



Though private property is a system of individual decision-making, it
is still a system of social rules. The owner is not required to rely
on her own strength to vindicate her right to make self-interested
decisions about the object assigned to her: if Jennifer's employees
occupy the steel factory to keep it operating despite her wishes, she
can call the police and have them evicted; she does not have to do
this herself or even pay for it herself. So private property is
continually in need of public justification--first, because it
empowers individuals to make decisions about the use of scarce
resource in a way that is not necessarily sensitive to others' needs
or the public good; and second, because it does not merely permit that
but deploys public force at public expense to uphold it.



It may be thought that the justificatory issue is nowadays moot, with
the collapse of socialist systems in Eastern Europe and the former
Soviet Union, and the triumph of market economies all over the world.
It is tempting to conclude that since economic collectivism has been
thoroughly discredited, the problem of justifying *private*
property has been solved by default: there is simply no alternative.
But the point of discussing the justification of an institution is not
only to defend it against its competitors. Often we justify in order to
understand and also to operate the institution intelligently. In
thinking about property, there are a number of issues that make little
sense unless debated with an awareness of what the point of
*private* property might be. Some of these issues are
technical. Consider, for example, the rule against perpetuities, the
registration of land titles, or the limits on testamentary freedom;
all these would be like an arcane and unintelligible code, to be
learned at best by rote, unless we connect them with the point of
throwing social authority behind individual control (or behind the
individual disposition of control) over material resources. (See
Ackerman 1977, p. 116.)



The same is true of some grander issues. The Fifth Amendment to the
U.S. Constitution requires that private property not be taken for
public use without compensation. Clearly this prohibits the simple
seizure of someone's land for use, say, as a firing range or an
airport. But what if the state places a restriction on the use of a
person's land, telling the owner that she may not erect a modern
skyscraper because it will compromise the historical aesthetics of the
neighborhood? Does this amount to a taking? Certainly the owner has
suffered a loss (she may have bought the land with the intention of
developing it). On the other hand, we should not pretend that there is
a taking whenever any restriction is imposed: I may not drive my car
at 100 m.p.h. but I am still the owner of the car. Such questions
cannot be answered intelligently without revisiting the reasons (if
any) that there are for giving private property this sort of
constitutional protection. Is it protected because we distrust the
state's ability to make intelligent decisions about resource use? Or
is it protected because we want to place limits on the burdens that
any individual may be expected to bear for the sake of the public
good? Our sense of the ultimate values that private ownership is
supposed to serve may make a considerable difference to our
interpretation of the takings clause and other doctrines.



Plainly private property and collective control are not all-or-nothing
alternatives. In every modern society, some resources are governed by
common property rules (e.g., streets and parks), some are governed by
collective property rules (e.g., military bases and artillery pieces),
and some are governed by private property rules (toothbrushes and
bicycles). Also, there are variations in the degree of freedom that a
private owner has over the resources assigned to him. Obviously, an
owner's freedom is limited by background rules of conduct: I may not
use my gun to kill another person. These are not strictly property
rules. More to the point are things like zoning restrictions, which
amount in effect to the imposition of a collective decision about
certain aspects of the use of a given resource. The owner of a
building in an historic district may be told, for example, that she
can use it as a shop, a home, or a hotel but she may not knock it down
and replace it with a skyscraper. In this case, we may still say that
the historic building counts as private property; but if too many
other areas of decision about its use were also controlled by public
agencies, we would be more inclined to say that it was really subject
to a collective property rule (with the 'owner'
functioning as steward of society's decisions).



It is probably a mistake therefore to insist on any definition of
private property that implies a proprietor has absolute control over
his
 resource.[2]
 Some jurists have even argued that the terms 'property'
and 'ownership' should be eliminated from the technical
discourse of the law (see Grey 1980). They say that calling someone
the 'owner' of a resource conveys no exact information
about her rights in relation to that resource: a corporate owner is
not the same as an individual owner; the owner of intellectual
property has a different array of rights than the owner of an
automobile; and even with regard to one and the same resource, the
rights (and duties) of a landlord who owes nothing on his property
might be quite different from those of a mortgagor.



The eliminative proposal makes sense to this extent: the position of a
private owner is best understood not as a single right to the
exclusive use and control of the object in question, but as a bundle
of rights, which may vary from case to case (Honore 1961).



In recent literature, the 'bundle of rights' conception
has encountered resistance. Some theorists want to insist that
property is better conceived, as it is in colloquial usage, as a
substantial relation between a person and a thing (Penner 2000 and
Smith 2012). This can be put forward on analytic grounds or for
ideological reasons; on the latter approach it is said that the
importance of property for a free society is obscured when the
ownership relation is treated as a divisible bundle of rights (Attas
2006).



Theorists who persevere with the 'bundle of rights'
analysis nevertheless present some sticks in the bundle as more
important than others: the right to exclude is usually seen as the key
to ownership, even if it is one among many other rights and legal
relations that property comprises. It is the aspect of ownership that
has the greatest impact on others (Waldron 1993). Other
theorists are more skeptical about this. Katz 2008 and Dagan 2011
suggest that in our analysis of private property we should place less
emphasis on the right to exclude and more on the owner's power
of agenda-setting so far as the use of a given resource is concerned.
On any account, 'exclusive use' is a complex idea. Its
implications vary from context to context and from object to object:
we actually have a plurality of property arrangements, striking
different balances between owners' and others' interests
(Dagan 2013). In its most abstract terms, the right to exclude
implies, first, that the owner is at liberty to use the object as he
pleases (within a range of generally acceptable uses) without
interference from others. Secondly, it implies that others have
an obligation to refrain from using the object without the owner's
permission. The point about permission implies in turn that the owner
has the power to license others to use her property. She may lend her
automobile, rent her house, or grant a right of way over her land. The
effect of this may be to create other property interests in the
object, so that the various liberties, rights and powers of ownership
are divided among several individuals.



More strikingly, the owner is legally empowered to transfer the whole
bundle of rights in the object she owns to somebody else--as a
gift or by sale or as a legacy after death. With this power, a private
property system becomes self-perpetuating. After an initial assignment
of objects to owners, there is no further need for the community or
the state to concern itself with distributive questions. Objects will
circulate as the whims and decisions of individual owners and their
successive transferees dictate. The result may be that wealth is
widely distributed or it may be that wealth is concentrated in a very
few hands. It is part of the logic of private property that no-one has
the responsibility to concern themselves with the big picture, so far
as the distribution of resources is concerned. Society simply pledges
itself to enforce the rights of exclusion that ownership involves
wherever those rights happen to be. Any concern about the balance
between rich and poor must be brought in as a separate matter of
public policy (as tax and welfare policy or *in extremis* large
scale redistribution). As we shall see, philosophers disagree as to
whether this is an advantage or an indictment of private property
systems.



At the furthest reaches of analysis, the concept of private property
becomes quite contestable. Many people believe that ownership implies
inheritance. But Mill once observed (Mill 1994 [1848], p. 28) that the
private property idea implied only 'the right of each to his (or
her) own faculties, to what he can produce by them, and to whatever he
can get for them in a fair market; together with his right to give
this to any other person if he chooses.' He said that passing
the property of individuals who made no disposition of it during their
lifetime to their children 'may be a proper arrangement or not,
but it is no consequence of the principle of private property'
(ibid.). Definitive resolution of such controversies is probably
impossible. Some philosophers have suggested that certain concepts
should be regarded as 'essentially contested concepts'
(see Gallie 1956); if there is anything to this suggestion, private
property might be one of them (see Waldron 1988, pp. 51-2).


## 2. Historical Overview



There are extensive discussions of property in the writings of Plato,
Aristotle, Aquinas, Hegel, Hobbes, Locke, Hume, Kant, Marx, and Mill.
The range of justificatory themes they consider is very broad, and I
shall begin with a summary.



The ancient authors speculated about the relation between property and
virtue, a natural subject for discussion since justifying private
property raises serious questions about the legitimacy of
self-interested activity. Plato (*Republic*, 462b-c) argued
that collective ownership was necessary to promote common pursuit of
the common interest, and to avoid the social divisiveness that would
occur 'when some grieve exceedingly and others rejoice at the
same happenings.' Aristotle responded by arguing that private
ownership promotes virtues like prudence and responsibility:
'[W]hen everyone has a distinct interest, men will not complain
of one another, and they will make more progress, because every one
will be attending to his own business' (Aristotle,
*Politics*, 1263a). Even altruism, said Aristotle, might be
better promoted by focusing ethical attention on the way a person
*exercises* his rights of private property rather than
questioning the institution itself (ibid.). Aristotle also reflected
on the relation between property and freedom, and the contribution
that ownership makes to a person's being a free man and thus suitable
for citizenship. The Greeks took liberty to be a status defined by
contrast with slavery, and for Aristotle, to be free was to belong to
oneself, to be one's own man, whereas the slave was by nature the
property of another. Self-possession was connected with having
sufficient distance from one's desires to enable the practice of
virtuous self-control. On this account, the natural slave was unfree
because his reason could not prescribe a rule to his bodily appetites.
Aristotle had no hesitation in extending this point beyond slavery to
the conditions of 'the meaner sort of workman.' Obsessed
with need, the poor are 'too degraded' to participate in
politics like free men. 'You could no more make a city out of
paupers,' wrote Aristotle, 'than out of slaves'
(ibid., 1278a). They must be ruled like slaves, for otherwise their
pressing and immediate needs will issue in envy and violence. Some of
these themes have emerged more recently in civic republican theories,
though modern theories of citizenship tend to begin with a sense of
who should be citizens (all adult residents) and then proceed to argue
that they should all have property, rather than using existing wealth
as an independent criterion for the franchise (King and Waldron
1988).



In the medieval period, Thomas Aquinas continued discussion of the
Aristotlean idea that virtue might be expressed in the use that one
makes of one's property. But Aquinas gave it a sharper edge. Not only
do the rich have moral obligations to act generously, but the poor
also have rights against the rich. Beginning from the premise that
'[a]ccording to the natural order established by Divine
Providence, inferior things are ordained for the purpose of succoring
man's needs...' (Aquinas *ST*, p. 72), Aquinas
argued that no division of resources based on human law can prevail
over the necessities associated with destitution. This is a theme
which recurs throughout our tradition--most notably in Locke's
*First Treatise on Government*, (Locke 1988 [1689], I, para.
42)--as an essential qualification of whatever else is said about
the legitimacy of private property (Horne 1990).



In the early modern period, philosophers turned their attention to the
way in which property might have been instituted, with Hobbes and Hume
arguing that there is no natural 'mine' or
'thine,' and that property must be understood as the
creation of the sovereign state (Hobbes 1983 [1647]) or at the very
least the artificial product of a convention 'enter'd into by
all the members of the society to bestow stability on the possession
of...external goods, and leave every one in the peaceable
enjoyment of what he may acquire by his fortune and industry'
(Hume 1978 [1739], p. 489). John Locke (1988 [1689]), on the other
hand, was adamant that property could have been instituted in a state
of nature without any special conventions or political decisions.



Locke's theory is widely regarded as the most interesting of the
canonical discussions of property. In part this is a result of how he
began his account; because he took as his starting point that God gave
the world to men in common, he had to acknowledge from the outset that
private entitlements pose a moral problem. How do we move from a
common endowment to the 'disproportionate and unequal Possession
of the Earth' that seems to go along with private property?
Unlike some of his predecessors, Locke did not base his resolution of
this difficulty on any theory of universal (even tacit) consent.
Instead, in the most famous passage of his chapter on property, he
gave a moral defense of the legitimacy of unilateral
appropriation.



> 
> Though the Earth...be common to all Men, yet every Man has a
> Property in his own Person. This no Body has any Right to but himself.
> The Labour of his Body, and the Work of his Hands, we may say, are
> properly his. Whatsoever then he removes out of the State that Nature
> hath provided, and left it in, he hath mixed his Labour with, and
> joyned to it something that is his own, and thereby makes it his
> Property. It being by him removed from the common state Nature placed
> it in, it hath by this labour something annexed to it, that excludes
> the common right of other Men. (Locke 1988 [1689], II, para. 27)
> 



The interest of Locke's account lies in the way he combines the
structure of a theory of first occupancy with an account of the
substantive moral significance of labor. In the hands of writers like
Samuel Pufendorf (1991 [1673], p. 84), First Occupancy theory
proceeded on the basis that the first human user of a natural
resource--a piece of land, for example--is distinguished
from all others in that he did not have to displace anyone else in
order to take possession. It did not particularly matter *how*
he took possession of it, or what sort of use he made of it: what
mattered was that he began acting as its owner without dispossessing
anyone else. Now although Locke used the logic of this account, it
*did* matter for him that the land was cultivated or in some
other way used productively. (For this reason, he expressed doubts
whether indigenous hunters or nomadic peoples could properly be
regarded as owners of the land over which they roamed.) This is partly
because Locke identified the ownership of labor as something connected
substantially to the primal ownership of self. But it was also because
he thought the productivity of labor would help answer some of the
difficulties which he saw in First Occupancy theory. Though the first
occupier does not actually dispossess anyone, still his acquisition
may prejudice other's interests if there is not, in Locke's words,
'enough and as good left in common' for them to enjoy
(Locke 1988 [1689], II, para. 27). Locke's answer to this difficulty
was to emphasize that appropriation by *productive* labor
actually increased the amount of goods available in society for others
(ibid., II, para. 37). There is also something like a strand of moral
desert in Locke's theory: if one person fails to take advantage
of an opportunity of resource-use or resource development, can that
person really complain or demand compensation when the opportunity is
taken up by someone else (de Jasay 2004)?



Immanuel Kant's work on property is more formal and abstract than
Locke's and--at least until recently-it was less
well-known. (But now see Byrd and Hruschka 2006 and Ripstein 2009.)
Kant began by emphasizing a general connection between property and
agency, maintaining that there would be an affront to agency and thus
to human personality, if some system were not arrived at which could
permit useful objects to be used. He inferred from this that 'it
is a duty of right to act towards others so that what is external
(usable) could also become someone's' (Kant 1991 [1797], p. 74)
Though this legitimated unilateral appropriation, it did so only in a
provisional way. Since the appropriation of a resource as private
property affects everyone else's position (imposing duties on them
that they would otherwise not have), it cannot acquire full legitimacy
by unilateral action: it must be ratified by an arrangement which
respects everyone's interests in this matter. So the force of the
principle requiring people to act so that external objects can be used
as property also requires them to enter into a civil constitution,
which will actually settle who is to be the owner of what on a basis
that is fair to all.



G.W.F. Hegel's account of property centers on the contribution
property makes to the development of the self, 'superseding and
replacing the subjective phase of personality' (1967 [1821],
para. 41a) and giving some sort of external reality to what would
otherwise be the mere idea of individual freedom. These rather obscure
formulations were taken up also by the English idealists, most notably
by T.H. Green (1941 [1895]), who emphasized the contribution that
ownership makes to ethical development, to the growth of the will and
a sense of responsibility. But neither of these writers thought of the
development of the individual person as the be-all and end-all of
property. In both cases it was thought of as a stage in the growth of
social responsibility. Both saw the freedom embodied in property as
ultimately *positive* freedom--freedom to choose
rationally and responsibly for the wider social good. In Karl Marx's
philosophy, Hegel's sense of there being several stages in the growth
of positive freedom is framed in terms of stages of social development
rather than stages of the growth of individuals (Marx 1972 [1862]).
And for Marx, as for Plato, social responsibility in the exercise of
private property rights is never enough. The whole trajectory of the
development of modern society, says Marx, is towards large-scale
cooperative labor. This may be masked by forms of property that treat
vast corporations as private owners, but eventually this carapace will
be abandoned and collectivist economic relations will emerge and be
celebrated as such.



The general merits of private property versus socialism thus became a
subject of genuine debate in the nineteenth and twentieth centuries.
John Stuart Mill, with his characteristic open-mindedness treated
communism as a genuine option, and he confronted objections to the
collectivist ideal with the suggestion that the inequitable
distribution of property in actually existing capitalist societies
already partakes of many of these difficulties. He insisted however,
that private property be given a fair hearing as well:



> 
> If...the choice were to be made between Communism...and the
> present state of society with all its sufferings and
> injustices,...all the difficulties, great or small, of Communism
> would be but as dust in the balance. But to make the comparison
> applicable, we must compare Communism at its best, with the regime of
> individual property, not as it is, but as it might be made...The
> laws of property have never yet conformed to the principles on which
> the justification of private property rests. (Mill 1994[1848], pp.
> 14-15)
> 



Mill is surely right, at least so far as the aims of a philosophical
discussion of property are concerned. Indeed, one way of looking at
the history we have just briefly surveyed is that it is the history of
successive attempts to tease out, from the mess of actually-existing
maldistribution and exploitation, some sense of the true principles on
which the justification of an ideal system of private property would
rest, and a sense too of other aspects of moral enterprise which such
an institution might serve.


## 3. Is Property a Philosophical Issue?



What is it about property that engages the interest of philosophers?
Why should philosophers be interested in property?



Some have suggested that they need not be. John Rawls argued that
questions about the system of ownership are secondary or derivative
questions, to be dealt with pragmatically rather than as issues in
political philosophy (Rawls 1999, pp. 235-42). Although every society
has to decide whether the economy will be organized on the basis of
markets and private ownership or on the basis of central collective
control, there was little that philosophers could contribute to these
debates. Philosophers, Rawls said, are better off discussing the
abstract principles of justice that should constrain the establishment
of *any* social institutions, than trying to settle *a
priori* questions of social and economic strategy. His own
suggestions favoring the institutions of 'a property-owning
democracy' are put forward more as intermediate principles than
as fundamentals of justice.



On the other hand, with the growing attention that is being paid in
the discipline to public policy generally, it is difficult to deny
that questions about property can be posed in terms that are abstract
enough for philosophers to address. Though Rawls counsels us to talk
about justice rather than property, in fact issues about property are
inevitably implicated in some of the issues about justice that have
preoccupied political philosophers in recent years. Certain property
institutions may be better than others for justice. A system of
markets and private property covering all or most of the resources in
society will make it very difficult to ensure the steady application
of principles like equality, distribution according to need, or even
as some have argued--see e.g., Hayek 1976--distribution
according to desert. Some have argued that property rights in a market
economy ought to be treated as resistant to redistribution and perhaps
as insensitive to distributive justice generally except possibly at
the moment of their initial allocation (see Nozick, 1974). If we take
this view and if we also take distributive issues seriously, we may
have to commit ourselves to a compromised or eclectic system rather
than a pure market system of private property.



What about the ownership relation itself? Is there any inherent
philosophical interest in the nature of a person's relation to
material resources? When someone says '*X* is mine'
and *X* is an action, we see interesting questions about
intentionality, free-will, and responsibility, which philosophers will
want to pursue. Or when someone says '*X* belongs to
person *P*,' and *X* is an event, memory, or
experience, there are interesting questions about personal identity.
But when *X* is an apple or a piece of land or an automobile,
there does not appear to be any question of an *inherent*
relation between *X* and *P* which might arouse our
interest.



This was one of David Hume's conclusions. There is nothing natural
about private property, wrote Hume. The 'contrariety' of
our passions and the 'looseness and easy transition [of material
objects] from one person to another' mean that any situation in
which I hold or use a resource is always vulnerable to disruption
(Hume 1978 [1739], p. 488). Until possession is stabilized by social
rules, there is no secure relation between person and thing. We may
think that there ought to be: we may think, for example, that a person
has a moral right to something that he has made and that society has
an obligation to give legal backing to this moral right. But according
to Hume, we have to ask what it is in general for society to set up
and enforce rules of this kind, before we can reach any conclusions
about the normative significance of the relation between any
particular person and any particular thing.



> 
> Our property is nothing but those goods, whose constant possession is
> establish'd by the laws of society; that is, by the laws of justice.
> Those, therefore, who make use of the words property, or right, or
> obligation, before they have explain'd the origin of justice, or even
> make use of them in that explication, are guilty of a very gross
> fallacy, and can never reason upon any solid foundation. A man's
> property is some object related to him. This relation is not natural,
> but moral, and founded on justice. Tis very preposterous, therefore,
> to imagine, that we can have any idea of property, without fully
> comprehending the nature of justice, and shewing its origin in the
> artifice and contrivance of man. The origin of justice explains that
> of property. The same artifice gives rise to both. (ibid., p. 491)
> 



The Humean view of property as a convention has been taken up by
Murphy and Nagel (2004) as a basis for resisting the view, associated
with Nozick 1974, that property rights can pose any moral obstacle to
programs of tax and transfer or other forms of redistribution and
social control. But the fact that something is conventional
doesn't mean it can safely be treated as malleable or as
something that can be overridden without cost. There is always a
further question about the moral reasons that there are for holding
conventions steady; and these reasons may actually echo other themes
in the property debate.



Before Hume, the view that the issue of property begged questions
about the general basis of social organization was already
foreshadowed in the political philosophy of Thomas Hobbes. Indeed
Hobbes regarded property as the key to political philosophy:
'[M]y first enquiry was to be from whence it proceeded, that any
man should call any thing rather his *Owne*, th[a]n another
mans' (Hobbes 1983 [1647], pp. 26-7). For Hobbes, property
rules were the product of authority--the acknowledged authority
of a sovereign, whose commands could guarantee the peace and make it
safe for men to embark on social and economic activities that
outstripped their ability to protect themselves using their own
individual strength. Hume, by contrast, was interested in the
possibility that the relevant settlement might emerge as conventions
from ordinary human interactions rather than as impositions by an
acknowledged figure in authority (Hume 1978 [1739], p.
490).[3]



Still even if we concede that property is the product of social rules,
and that normative thinking about the former must be preceded by
normative thinking about the latter, there might be facts about the
human condition or our agency as embodied beings that provide
philosophical premises for an argument that property relations should
be established in one way rather than another. Clearly, there is at
least one material object with which a person does seem to have an
intimate pre-legal relation that would bear some philosophical
analysis--namely, that person's body. We are embodied beings and
to a certain extent the use and control of our limbs, sensory organs
etc. is indispensable for our agency. Were a person to be deprived of
this control--were others to have the right to block or
manipulate the movements of his physical body--then his agency
would be truncated, and he would be incapable of using his powers of
intention and action to make something he (and others) could regard as
a life for himself. Some modern authors, following John Locke, have
tried to think about this in terms of an idea of self-ownership.
According to G.A. Cohen (1995) a person owns himself when he has all
the control over his own body that a master would have over him were
he a slave. Now since a master is entitled to make comprehensive use
of his slave for his own profit without owing any account or any
contribution to anyone else, it seems to follow from the idea of
self-ownership that a person must be allowed to profit equally
comprehensively from the control of his own mental and bodily
resources. Taking his cue from Nozick (1974) that taxation on earnings
is a form of coerced labor (for others or for the state), Cohen
concludes that various egalitarian arrangements (like welfare paid for
out of taxation) are incompatible with the self-ownership of the rich.
It looks like we have to choose between principles of equality and
principles of self-ownership. Debate on this issue continues (Otsuka
1998, Vrousalis 2011, and Sobel 2012): some argue that what we owe to
others must be figured out first before there can be any question of
owning either our selves, our bodies, or other material resources;
while others say that any attempt to make the argument in that order
will lead to counter-intuitive results (Nozick 1974, p. 234). Some
recent discussions have called into question the very idea of
self-ownership (Rasmussen 2008 and Phillips 2013), denying that this
concept is necessary in order to capture the inviolability of the
human person.



There is a further question whether self-ownership affords a basis for
thinking about property in external objects other than my body? John
Locke thought that it did (Locke 1988 [1689], II, para. 27). He
suggested that when I work on an object or cultivate a piece of land,
I project something of my self-owned self into the thing. That
something I have worked on embodies a part of me is a common enough
sentiment, but it is difficult to give it a analytically precise
sense. That an object is shaped the way it is may be an effect of my
actions; but actions don't seem to have the trans-temporal endurance
to enable us to say that *they* remain present in the object
after the time of their performance. The idea of mixing one's labor
seems to be a piece of rhetoric which enhances other arguments for
private property rather than an argument in its own right.



Others have speculated about an effect in the opposite
direction--not so much the incorporation of the self into the
object as the incorporation of the thing into the self (Radin 1982).
This was a theme in Hegel's work, where there was a suggestion that
owning property helped the individual to 'supersede the mere
subjectivity of personality' (Hegel [1821] 1991, 73); in plain
English, it gave them the opportunity to make concrete the plans and
schemes that would otherwise just buzz around inside their heads, and
to take responsibility for their intentions as the material they were
working on--a home or an sculptor's block of
marble--registered the impact of the decisions they had made (see
Waldron 1988, pp. 343-89). Even the utilitarian Jeremy Bentham
toyed with a version this idea. Though property, he said, depended on
positive law, the law of property had an effect on the self that makes
redistribution particularly objectionable. Law provided security for
our expectations, and when that security came to be focused on a
particular object, that object formed part of the structure of one's
agency: 'It is hence that we have the power of forming a general
plan of conduct; it is hence that the successive instants which
compose the duration of life are not like isolated and independent
points, but become continuous parts of a whole' (Bentham 1931
[1802], p. 111).


## 4. Genealogies of Property



In our philosophical tradition, arguments about the justification of
property have often been presented as genealogies: as stories about
the way in which private property might have emerged in a world that
was hitherto unacquainted with the institution.



The best known are Lockean stories (Locke 1988 [1689] and Nozick
1974). One begins with a description of a state of nature and an
initial premise about land belonging to nobody in particular. And then
one tells a story about why it would be sensible for individuals to
appropriate land and other resources for their personal use and about
the conditions under which such appropriations would be justified.
Individuals have needs and they find themselves surrounded with
objects capable of satisfying those needs. But each person,
*X*, is vaguely aware that the objects have not been furnished
by God or nature for *X*'s use alone; others have a need for
them as well. So what is *X* to do? One thing is clear: if
*X* has to wait for some general meeting of everyone who might
be affected by his use of the resources in his vicinity before he is
allowed to use them then, as Locke put it, 'man had starved,
notwithstanding the plenty God had given him' (Locke 1988
[1689], II, para. 28). So the individual goes ahead and takes what he
needs (ibid., I, para. 86). He 'mixes his labor' with the
object he needs, and by doing so he fulfills his fundamental duty of
self-preservation, while also increasing the value of the resources he
works on for the indirect benefit of others. The first phase of
Locke's story involves individuals satisfying their needs out of the
common largesse in this virtuous and self-reliant way. The second
phase of the story involves their exchanging surplus goods that they
have appropriated with one another; rather than saying that such
surpluses lapse back into the common heritage, Locke allows
individuals to acquire, grow, or make more than they can use so that
markets become possible and prosperity general (ibid., II, paras.
46-51). With markets and prosperity, however, comes inequality,
avarice and envy, and the third and last stage of Locke's account is
the institution of government to protect the property rights that have
grown up in this way (ibid., II, paras. 123 ff.) The story assumes
that individuals are able to reason through these issues of who is
entitled to appropriate and use and exchange goods without the
tutelage of government, and that at neither the first stage nor the
second stage is any social or political decision-making about property
required.



In its most basic aspect, Locke's genealogy has the character of a
First Occupancy story. In the first instance, the legitimacy of an
individual's appropriation stems largely from the fact that it does
not involve the direct expropriation of anyone else: by definition the
'first occupancy' is peaceful. There are, of course,
strong elements of utilitarian and virtue theory in Locke's account
too--the productivity of labor and the privileging of what Locke
calls 'the Industrious and the Rational' over the
'Covetousness of the Quarrelsom and Contentious' (ibid.,
II, para. 34). But the issue of historical priority is indispensable.
Whose use of a given resource came first is crucial, and the order in
which goods were subsequently transferred from hand to hand is
indispensable for understanding the legitimacy of current
entitlements. Robert Nozick (1974) has done more than anyone else to
elucidate the form of this kind of 'historical
entitlement' theory.



Not all genealogies of property have this shape. David Hume tells a
completely different sort of story. On his approach, we begin by
assuming that since time immemorial, people have been fighting over
resources, so that the distribution of *de facto* possession at
any given time is arbitrary, being driven by force, cunning, and luck.
Now it is possible that such fighting will continue indefinitely. But
it is also possible that it may settle down into a sort of stable
equilibrium in which those in possession of significant resources and
those tempted to grab resources from others find that the marginal
costs of further predatory activity are equal to their marginal gains.
Under these conditions, something like a 'peace dividend'
may be available. Maybe everyone can gain, in terms of the diminution
of conflict, the stabilizing of social relations, and the prospects
for market exchange, by an agreement not to fight any more over
possessions.



> 
> I observe, that it will be for my interest to leave another in the
> possession of his goods, provided he will act in the same manner with
> regard to me. He is sensible of a like interest in the regulation of
> his conduct. When this common sense of interest is mutually express'd,
> and is known to both, it produces a suitable resolution and
> behaviour... (Hume 1978 [1739], p. 490).
> 



Such a resolution, if it lasts, may amount over time to a ratification
of *de facto* holdings as *de jure* property. As with
Locke's account, the state comes into the picture much later to
reinforce conventions of property that emerge informally in this way
(ibid., pp. 534 ff.). But notice how much more modest Hume's story is
than the Lockean account in the moral claims that it makes (see
Waldron 1994). The stability of the emergent distribution has nothing
to do with its justice, nor with the moral quality of the actions by
which goods were appropriated. It may be fair or unfair, equal or
unequal, but the parties already know that they cannot hope for a much
better distribution by pitching their own strength yet again against
that of others. (See also Buchanan 1975 for a modern version of this
approach.)



As an account of the genesis of property, Hume's theory has the
advantage over its main rivals of acknowledging that the early eras of
human history are eras of conflict largely unregulated by principle
and opaque to later moral enquiry. It does not require us to delve
into history to ascertain who did what to whom, and what would have
happened if they had not. Once a settled pattern of possession
emerges, we simply draw an arbitrary line and say, 'Property
entitlements start from *here*.' The model has important
normative consequences for the present as well. Those who are tempted
to question or disrupt an existing distribution of property must
recognize that far from ushering in a new era of justice, their best
efforts are likely to inaugurate an era of conflict in which all bets
are off and in which virtually no planning or cooperation is possible.
The weakness of the Humean approach is the obverse of its strength.
The moral considerations that it marginalizes actually do matter to
us. For example, we would not be happy with a Humean convention
ratifying slavery or cannibalism, but for all that Hume shows it may
well be a feature of the equilibrium emerging from the age of conflict
that some people are in possession of others' bodies. The point is
that even if Hume is right that the sentiment of justice is built up
out of a convention to respect one another's *de facto*
possessions, that sentiment once established can take on a life of its
own, so that it can subsequently be turned against the very
equilibrium that engendered it (Waldron 1994).



A third variety of property-story makes the state and the social
contract more fundamental than it is in either Locke's or Hume's
approach. We are to imagine a period where people try and rely on
their own physical and moral initiative to take possession of the
resources which they need or want, but in which it become increasingly
apparent that institution of reliable property arrangements is going
to have to involve a social decision. Eventually property must be
based on consent--the consent of everyone affected by decisions
about the use and control of a given set of resources. This theory is
associated with the normative political philosophy of Jean-Jacques
Rousseau (1968 [1762]) and Immanuel Kant (1991 [1797]). As we have
seen, the Lockean critique of this sort of approach was always that
urgency of material need left no time for social consent. In fact the
Rousseau/Kant approach has little difficulty with this point. There
can be provisional appropriations made unilaterally (Ryan 1984, p.
80). But every such appropriation is subject in principle to the
consent of all and must be offered up for social ratification. In
other words, the urgency of immediate need is not taken as a basis of
discrediting the review and redistribution of possession by society as
a whole if serious distributive anomalies are emerging.



What all this actually yields in the way of a legitimate assignment of
resources to individuals is a matter of the distributive principles
that survive the test of ratification by the general will. Rawlsian,
egalitarian and utilitarian approaches are all imaginable under the
auspices of this account. The essence of the Rousseau/Kant approach is
that society's deployment of principles like these to evaluate
existing distributions is never trumped by the history of entitlements
and it is never excluded by the Humean conventions that may have
emerged as a cosy equilibrium among those who are actually in
possession.



What claims are being made in and about these stories? Are we to
assume that one of them is literally true? Or what are we to infer
from their falsity (if they are historically inaccurate)? Does it
follow that property is illegitimate? A number of philosophers have
suggested recently that a genealogy can make an important contribution
to our understanding of a phenomenon even when it is not literally
true: Bernard Williams (2002) has suggested this about language and
the emergence of truth-telling, following Edward Craig (1990)'s
genealogical account of our possession of the concept of knowledge.
Robert Nozick has also discussed the value of what he calls
'potential explanations'--stories that would explain
how something happened if certain things were the case (some of which
in fact are not the case): 'To see how in principle, a whole
realm could fundamentally be explained greatly increases our
understanding of the realm...We learn much by seeing how the
state could have arisen, even if it didn't arise that way'
(Nozick 1974, pp. 8-9).



The genealogies we have considered may differ in this regard. The
Rousseau/Kant approach helps us understand why private property is
inherently a matter of social concern and the Humean approach helps us
see the value of property in providing people with a fixed and
mutually acknowledged basis on which the rest of social life can be
built, whether or not it answers to our independent intuitions of
justice. But the Lockean genealogy may explain little or nothing about
property entitlements unless it is actually true. As Nozick
acknowledges (1974, pp. 151-2), a modern state should not feel
morally constrained by property holdings which might have had a
Lockean pedigree but in fact do not. In this regard it is interesting
that one of the main uses of Lockean theory these days is in defending
the property rights of indigenous people--where a literal claim
is being made about who had first possession of a set of resources and
about the need to rectify the injustices that accompanied their
subsequent expropriation (see Waldron 1992).



Finally, we should not forget that not all genealogies set out to
flatter the practices or institutions they purport to explain. Karl
Marx's account of primitive accumulation (1976 [1867]) and
Jean-Jacques Rousseau's non-normative description of the invention of
property in the *Discourse on the Origins of Inequality*
(Rousseau 1994 [1755]) are genealogies written more in a Nietzschean
spirit of pathology than as part of any quest for justification. Such
negative genealogies reminds us of the importance of Mill's
observation that in approaching the justification of private property
we must remember that, 'we must leave out of consideration its
actual origin in any of the existing nations of Europe' (Mill
1994 [1848], p. 7).


## 5. Justification: Liberty and Consequences



The justificatory issue might therefore be confronted directly,
without invoking any sort of history or genealogical narrative.



In dealing with the pros and cons of private property as an
institution, it has sometimes been suggested that the general
justification of private property and the distribution of particular
property rights can be treated as separate issues, rather in the way
that some philosophers suggested that the general justification of
punishment can be separated from the principles governing its
distribution (Hart 1968, p. 4; see also Ryan 1984, p. 82 and Waldron
1988, p. 330). In neither case, though, is the separation complete: it
holds for some general justifications and not for others. In the
theory of punishment, a retributivist will believe that the principles
governing punishment in general necessarily also regulate its
particular distribution. And there are analogues in the theory of
property. Robert Nozick (1974) argued that a theory of historical
entitlement, along Lockean lines, provides both a complete
justification of the institution and a set of strict criteria that
govern its legitimate distribution. Property rights, according to
Nozick, constrain the extent to which we are entitled to act on our
intuitions and theories about distributive justice. Consequentialist
theories, however, may be able to separate the institutional and
distributive issues in this way, and some theories of liberty may be
able to do this also (though the distribution of liberty is itself
something about which most libertarians have firm--and
egalitarian!--views). As we assess various distributive
arguments, then, it is a good idea to keep in mind the question of
whether or not they have direct or indirect distributive
implications.



On the other hand, it is surely important to keep in view the
'big picture' that a system of property presents (Singer
2000 and Purdy 2011). What overall model of community is generated by
a given system of property rights and by the way they circulate in
society? What kinds of inter-personal relations does a given
system of property foster? What ethos of economic interaction does it
give rise to: an obsession with efficiency, an ethic of
competitiveness, or a shared concern for those who are less well-off?
These questions are not distinct from questions about distribution,
but they look at them in a different light, not just asking about
their moral justification one by one.



The most common form of justificatory argument is consequentialist:
people in general are better off when a given class of resources is
governed by a private property regime than by any alternative system.
Under private property, it is said, the resources will be more wisely
used, or used to satisfy a wider (and perhaps more varied) set of
wants than under any alternative system, so that the overall enjoyment
that humans derive from a given stock of resources will be increased.
The most persuasive argument of this kind is sometimes referred to as
'the tragedy of the commons' (Hardin 1968). If everyone is
entitled to use a given piece of land, then no one has an incentive to
see that crops are planted or that the land is not over-used. Or if
anyone does take on this responsibility, they themselves are likely to
bear all the costs of doing so (the costs of planting or the costs of
their own self-restraint), while any benefits of their prudence will
accrue to all subsequent users. And in many cases there will be no
benefits, since one individual's planning or restraint will be futile
unless others cooperate. So, under a system of common property, each
commoner has an incentive to get as much as possible from the land as
quickly as possible, since the benefits of doing this are in the
short-term concentrated and assured, while the long-term benefits of
self-restraint are uncertain and diffused. However, if a piece of
hitherto common land is divided into parcels and each parcel is
assigned to a particular individual who can control what happens
there, then planning and self-restraint will have an opportunity to
assert themselves. For now the person who bears the cost of restraint
is in a position to reap all the benefits; so that if people are
rational and if restraint (or some other form of forward-looking
activity) is in fact cost-effective, there will be an overall increase
in the amount of utility derived.



Arguments of this sort are familiar and important, but like all
consequentialist arguments, they need to be treated with caution. In
most private property systems, there are some individuals who own
little or nothing, and who are entirely at the mercy of others. So
when it is said that 'people in general' are better off
under private property arrangements, we have to ask 'Which
people? Everyone? The majority? Or just a small class of owners whose
prosperity is so great as to offset the consequent immiseration of the
others in an aggregative utilitarian calculus?' (Wenar 1998).
John Locke hazarded the suggestion that everyone would be better off. 
Comparing England, whose commons were swiftly being enclosed by
private owners, to pre-colonial America, where the natives continued
to enjoy universal common access to land, Locke speculated that
'a King of a large and fruitful Territory there [i.e. in
America] feeds, lodges, and is clad worse than a day Labourer in
England.' (Locke 1988 [1689], II, para. 41) The laborer may not
own anything, but his standard of living is higher on account of the
employment prospects that are offered in a prosperous privatized
economy. Alternatively, the more optimistic of the consequentialists
cast their justifications in the language of what we would now call
'Pareto-improvement'. Maybe the privatization of
previously common land does not benefit everybody: but it benefits
some and it leaves others no worse off than they were before. The
homelessness and immiseration of the poor, on this account, is not a
result of private property; it is simply the natural predicament of
mankind from which a few energetic appropriators have managed to
extricate themselves.



So far we have considered the consequentialist case for private
property over common property. The consequentialist case for private
property over collective property has more to do with markets than
with the need for responsibility and self-restraint in resource use.
The argument for markets is that in a complex society there are
innumerable decisions to be made about the allocation of particular
resources to particular production processes. Is a given ton of coal
better used to generate electricity which will in turn be used to
refine aluminum for manufacturing cooking pots or aircraft, or to
produce steel which can be used to build railway trucks, which may in
turn be used to transport either cattle feed or bauxite from one place
to another? In most economies there are hundreds of thousands of
distinct factors of production, and it has proved impossible for
efficient decisions about their allocation to be made by central
agencies acting in the name of the community and charged with
overseeing the economy as a whole. In actually existing socialist
societies, central planning turned out to be a way of ensuring
economic paralysis, inefficiency and waste (Mises 1951). In market
economies, decisions like these are made on a decentralized basis by
thousands of individuals and firms responding to price signals, each
seeking to maximize profits from the use of the productive resources
under its control, and such a system often works efficiently. Some
have speculated that there could be markets without private property
(Rawls, 1971, p. 273), but this seems hopeless. Unless individual
managers in a market economy are motivated directly or indirectly by
considerations of personal profit in their investment and allocation
decisions, they cannot be expected to respond efficiently to prices.
Such motivation will occur only if the resources are privately owned,
so that the loss is theirs (or their employer's) when a market signal
is missed and the gain is theirs (or their employer's) when a
profitable allocation is secured.



I said earlier that a consequentialist defense is in trouble unless it
can show that everyone is better off under a private property system,
or at least that no-one is worse off. Now, a society in which all
citizens derive significant advantages from the privatization of the
economy is perhaps not an impossible ideal. But in every existing
private property system there is a class of people who own little or
nothing and who are arguably much worse off under that system than
they would be under a socialist alternative. A justificatory theory
cannot ignore their predicament, if only because it is their
predicament that poses the justificatory issue in the first place
(Waldron 1993). A hard-line consequentialist may insist that the
advantages to those who profit from private ownership outweigh the
costs to the underclass. Philosophically, however, this sort of hard
line is quite disreputable (Rawls 1971, pp. 22-33; Nozick 1974,
pp. 32-3). If we take the individual rather than a notional
entity like 'the social good' as the focal point of moral
justification, then there ought to be something we can say to
*each* individual why the institution we are defending is
worthy of her support. Otherwise it is not at all clear why
*she* should be expected to observe its rules (except when we
have the power and the numbers to compel her to do so).



Maybe the consequentialist argument can be supplemented with an
argument about desert in order to show that there is justice in some
people's enjoying the fruits of private property while others languish
in poverty. If private property involves the wiser and more efficient
use of resources, it is because someone has exercised virtues of
prudence, industry, and self-restraint. People who languish in
poverty, on this account, do so largely because of their idleness,
profligacy or want of initiative. Now, theories like this are easily
discredited if they purport to justify the actual distribution of
wealth under an existing private property economy (Nozick 1974, pp.
158-9; Hayek 1976). But there is a more modest position which
desert theorists can adopt: namely, that private property alone offers
a system in which idleness is not rewarded at the expense of industry,
a system in which those who take on the burdens of prudence and
productivity can expect to reap some reward for their virtue which
distinguishes them from those who did not make any such effort (Munzer
1990, pp. 285 ff.).



Many of the alleged market-advantages accrue only if private property
is distributed in certain ways. Monopolistic control of the main
factors of production by a few individuals or corporations can play
havoc with market efficiency; and it can also lead to such great
concentrations of private power as to offset any argument for property
based on freedom, dissent or democracy. Distributive equity may be
crucial also for non-consequentialist arguments. The idea that
property-owning promotes virtue is, as we have seen, as old as
Aristotle; and even today it is used by civic republicans as an
argument against economic collectivism. According to this argument, if
most economic resources are owned in common or controlled collectively
for everyone's benefit, there is no guarantee that citizen's
conditions of life will be such as to promote republican virtue. In a
communist or collectivist society, citizens may behave either as
passive beneficiaries of the state or irresponsible participants in a
tragedy of the commons. If a generation or two grow up with that
character then the integrity of the whole society is in danger. These
arguments are interesting, but it is worth noting how sensitive they
are to the distribution of property (Waldron 1986, pp. 323-42).
As T.H. Green observed, a person who owns nothing in a capitalist
society 'might as well, in respect of the ethical purposes which
the possession of property should serve, be denied rights of property
altogether' (Green 1941 [1895], p. 219).



We must also consider justificatory arguments that connect property
with liberty. Societies with private property are often described as
free societies. Part of what this means is surely that owners are free
to use their property as they please; they are not bound by social or
political decisions. (And correlatively, the role of government in
economic decision-making is minimized.) But that cannot be all that is
meant, for it would be equally apposite to describe private property
as a system of *unfreedom*, since it necessarily involves the
social exclusion of people from resources that others own. All
property systems distribute freedoms and unfreedoms; no system of
property can be described without qualification as a system of
liberty. Someone may respond that the liberty to use what belongs to
another is license not liberty, and so its exclusion should not really
count against a private property system in the libertarian calculus. 
But the price of this maneuver is very high: not only does it commit
the libertarian to a moralized conception of freedom of the sort that
he usually shies away from (as in case of positive liberty), but it
also means that liberty, so defined, can no longer be invoked to
support property except in a question-begging way (Cohen 1982).



Two other things might be implied by the libertarian characterization.
The first is a point about independence: a person who owns a
significant amount of private property--a home, say, and a source
of income--has less to fear from the opinion and coercion of
others than the citizen of a society in which some other form of
property predominates. The former inhabits, in a fairly literal sense,
the 'private sphere' that liberals have always treasured
for individuals--a realm of action in which he need answer to
no-one but himself. But like the virtue argument, this version of the
libertarian case is also sensitive to distribution: for those who own
nothing in a private property economy would seem to be as
unfree--by this argument--as anyone would be in a socialist
society.



That last point may be too quick, however, for there are other
indirect ways in which private property contributes to freedom (Purdy
2005). Milton Friedman (1962) argues that political liberty is
enhanced in a society where the means of intellectual and political
production (printing presses, photocopying machines, computers) are
controlled by a number of private individuals, firms, and
corporations--even if that number is not very large. In a
capitalist society, a dissident has the choice of dealing with several
people (other than state officials) if he wants to get his message
across, and many of them are prepared to make their media available
simply on the basis of money, without regard to the message. In a
socialist society, by contrast, those who are politically active
either have to persuade state agencies to disseminate their views, or
risk underground publication. More generally, Friedman argues, a
private property society offers those who own nothing a greater
variety of ways in which they earn a living--a larger menu of
masters, if you like--than they would be offered in a socialist
society. In these ways, private property for some may make a positive
contribution to freedom--or at least an enhancement of
choice--for everyone.



Finally, in this review of direct normative arguments about property,
we should consider the moral importance property might have in respect
of what it is, rather than what it does or brings about. Property
rights in and of themselves give people a certain status and
recognition in society: a property owner is respected in his or her
control of a resource (Dorfman 2012). This is surely important; it
was, as we saw, one of the themes of the approach taken in Hegel 1967
and in Kant 1991 (see Byrd and Hruschka 2006). But it can have critical
implications for property too, for if property is unevenly
distributed, if inequality is radical and some are more or less
comprehensively bereft of property rights, then acute issues have to
be faced about the uneven distribution of the bases of respect. We
cannot take seriously the good that property rights do in regard to
moral recognition without also considering the inherent harm of
absence of such recognition in the case of those who own nothing.