Property and Justice

A Liberal Theory of Natural Rights

Billy Christmas

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367752668
• eBook ISBN: 9781000370072
• Edition: 1
• Topic: Philosophy
• Subtopic: Jurisprudence

This book gives an account of a full spectrum of property rights and their relationship to individual liberty. It shows that a purely deontological approach to justice can deal with the most complex questions regarding the property system. Moreover, the author considers the economic, ecological, and technological complexities of our real-world property systems. The result is a more conceptually sound account of natural rights and the property system they demand.

If we think that liberty should be at the centre of justice, what does that mean for the property system? Economists and lawyers widely agree that a property system must be composed of many different types of property: the kind of private ownership one has over one's person and immediate possessions, as well as the kinds of common ownership we each have in our local streets, as well as many more. However, theories of property and justice have not given anything approaching an adequate account of the relationship between liberty and any other form of property other than private ownership. It is often thought that a basic commitment to liberty cannot really tell us how to arrange the major complexities of the property system, which diverge from simple private ownership.

Property and Justice demonstrates how philosophical rigour coupled with interdisciplinary engagement enables us to think clearly about how to deal with real-world problems. It will be of interest to political philosophers, political theorists, and legal theorists working on property rights and justice.

1 The Form of Justice

Introduction

Justice has a unique place in morality inasmuch as it addresses itself to a specifically socio-economic domain: that is the conditions of scarcity and uncertainty in a social context. In this chapter, I develop the view that justice gives us guidance in how to deal with a moral problem that arises in such a context: interpersonal practical conflict over scarce resources among those with whom we may not spontaneously coordinate. These circumstances of justice are, however, not incidental to our moral condition but essential to it. So, the rules of justice are not merely prudential or artificial. Our obligation to comply with them is one of natural morality.

The circumstances of justice, as I will argue, determine the form that it takes. Given that justice is the moral virtue that deals with the coordination of potentially mutually disinterested persons in a shared physical world, justice must lay down rules of priority determining who gets to act in what way with regard to which parts of the world. Mitigation of conflict between physically embodied agents is what gives justice its propertarian structure.

This chapter will argue for that structure from the formal standpoint of the moral functionality of justice. In the following chapter, I will develop the substance of justice further. Here, I will only argue that justice deals with the moral problems that arise for agents under conditions of scarcity and sociality, and that this means that justice provides reciprocal constraints on individual behaviour, such that each agent has an enumeration of actions in conjunction with external physical objects that they are permitted, prohibited, and required to take. The pattern of permissions, prohibitions, and requirements across the total set of agents must be mutually consistent. Hence, justice can be understood as a set of compossible rights. Moreover, those rights authorise agents to use force. In order to give final pronouncement on what actions may prevail over which others, this must be the case. Hence, justice constitutes a set of legitimately enforceable claims.

Regarding justice as being constituted by a set of compossible rights to physical objects is often associated with the view that all rights are private property rights, as that is the overarching view developed by Hillel Steiner¹ and less directly by Robert Nozick.² However, as I will show here, the criteria for compossibility of a set of rights do not demand that they be private property rights. All sets of private property rights are compossible; however, not all sets of compossible rights include or are limited to private property rights. This account of compossibility is the formal framework upon which the account of the commons will be built.

The Circumstances of Justice and Deontology

David Hume famously said that human society finds itself afflicted with two conditions: scarcity and limited benevolence.³ He referred to these conditions as comprising the circumstances of justice, because it is in virtue thereof that we should have need for justice as a set of interpersonal constraints on our action.

Scarcity refers to the fact that the physical world that we find ourselves in is one of certain kinds of limits. The resources that we might want to use, occupy, or need to consume are often rivalrous and always finite. Resources are rivalrous when one person’s use of them is mutually exclusive of another person’s use of them. For example for me to build a house on a particular plot of land, no one else can use that land to farm wheat. If I want to hunt in a particular valley, no one else is able to flood that valley to build a hydroelectric dam. For any given time-indexed object, if two person’s use of it are incompatible, then that object is rivalrous with regard to those two persons’ ends.

Resources are finite inasmuch as they are quantitatively limited. Land, for example, is not a boundless plane. There is only so much activity with regard to land that can take place at any given time before there is no more space for additional activities to occur. Many resources are used up in their use. While I could abandon my use of a plot of land, and that land would then become available for other uses or other persons; if I pick an apple from a tree and eat it, this apple may never be eaten again. That particular apple, as a resource, is consumed and hence used up. Of course, one could plant another apple tree, but that requires time, energy, and space to do so, which comes at the expense of all the other things society could do with that time, energy, and space. The economist’s notions of scarcity and opportunity cost presuppose these essential truisms about that nature of space–time and human action.⁴ Hume contrasts the reality of the scarce world with an imaginary world in which everything anyone could possibly want was freely available in as large a quantity as they desired, at no expense to anyone else, if they but reached out their hand and took it. “Justice, in that case being totally useless, would be an idle ceremonial, and could never possibly have place in the catalogue of virtues.”⁵ Finitude and scarcity are two ways of describing the same fact: given that there are a plurality of persons sharing the same physical space and time, their different desires and needs with regard to the use of resources mean not all of their ends can be satisfied. The finite nature of resources means that rivalry in the uses of resources generates scarcity.

Limited benevolence refers to the fact that spontaneous affection of persons does not extend to humanity generally, but only those close to us: those we have a history of intimate sociality with (family, friends, etc.) or those who, though we do not interact with, we identify with as sharing common identity and hence membership of our in-group, rather than the out-group (members of the same religion, tribe, community, etc.). We naturally have deeper care for those we have some sort of concrete tie with, not simply anyone who happens to be a human, and therefore is part of “our” society in the abstract.⁶ The practical conflicts that arise with regard to how to make use of the scarce world take on a new form among persons who not only have different desires, needs, goals, and values, but who also lack much care for one another.

If the only other persons we share the world with were people we have strong concrete ties with, people might predictably and reliably be happy to defer to the needs and wants of others and abstain from that which they might want for themselves; and others would be happy to reciprocally do the same. Given the fact that our benevolence is truncated, however, we do not all care for one another in this way; hence, the possibility – or inevitability – of interpersonal practical conflict. Given that many of the ends that we set for ourselves as individuals and in groups will overlap with the same external resources that other individuals and groups need for the ends they set themselves, some sort of allocation of those resources must be made between the respective individuals and groups, since both cannot simultaneously pursue their ends as they are originally set, nor can they be expected to spontaneously adjust to one another in ways that are mutually deemed agreeable. This inevitably results in the frustration of the ends persons set. Given that such frustration cannot be expected to come from the spontaneous deferment of any one individual or group to the other, it must come from a set of rules.⁷

Hume in fact understates the problem. As Adam Tebble has argued, there is also a fundamental knowledge problem that afflicts human society that gives rise to the need for rules to adjudicate inevitable interpersonal practical conflict.⁸ There is not only a physical and motivational problem with regard to human sociality, but also an epistemic one. Even if we were in a world in which we shared spontaneous benevolence for one another, we would not know how best to coordinate our actions as to actually achieve the other-regarding ends we seek. We can only ever have very limited information about what others are doing elsewhere, and how these affect the success conditions of our own actions – regardless of what motivates them. The primary problem is perhaps then not that we do not all love each other, but that we do not all know each other.⁹

Rules can act as a surrogate that enables persons to act on dispersed and fragmented information that they do not possess. If we can be confident that other people elsewhere are, whatever else they are doing, following a particular set of known rules, we can adjust our conduct accordingly.¹⁰ Even if we all loved each other, we would nonetheless need rules to fill the gaps left by our limited capacity for knowledge of one another’s actions and circumstances.

It is compliance with rules that prevent generalised conflict and interpersonal chaos that Hume says the virtue of justice consists in. Such rules evolve over a long period of time and are in part responsive to the particular socio-economic circumstances of the society in which they emerge; for example the types of resources that are widely depended upon and the modes of cooperation that there is a need for. Hume argued that since these circumstances were socio-economically determined and highly contingent, that justice itself must simply be a set of conventional norms¹¹ that humanity developed to deal with these circumstances, rather than something that comes naturally to us psychologically, or as something that we can identify through pure reason.¹² It is for this reason that Hume says that justice is an “artificial” virtue rather than a natural one.¹³ While it is undeniably true that the rules that adjudicate in cases of interpersonal practical conflict with regard to scarce resources emerge over time through conventional means, we ought not to mistake this descriptive account as being exhaustive of any prescriptive account of justice. The conventionalised rules of justice and the benefits they bring to society can be explained anthropologically, but that need not mean they cannot also be derived and understood purely morally.¹⁴

In the picture painted by Hume, justice presents as morally optional for the individual. Due to the limitations presented by human society, our social shortcomings,...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Epigraph
• Acknowledgements
• Introduction
• 1 The Form of Justice
• 2 The Substance of Justice
• 3 Original Acquisition
• 4 The Commons
• 5 The Limits to Appropriation
• 6 Against the Proviso
• 7 Intentions and Conventions
• Conclusion: Natural Rights and Liberal Politics
• Bibliography
• Index