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Subject Area: Political Theory

Justifying Property - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Justifying Property

James O. Grunebaum

  • New York State University at Buffalo

“Two Justifications of Property.” American Philosophical Quarterly 17(January 1980):53–59.

The author offers a schema (or set of formal conditions) for justifying property rights. Property rules perform two basic functions. First, they assign to individuals rights over things; such rights forbid other persons to interfere with the owner's use of these things. Rights over things can be called rights of title. Second, property rules create mechanisms for acquisition, transfer, and alienation of rights. These rules can be called “criteria of title” and answer the question “Who owns what?” The rights actually assigned and the criteria used to assign them, taken together, give the content of a set of property rules.

The criteria taken as a whole must be consistent, determinate, and complete. Consistency means that the criteria of title must not allow an individual to own something and not own it at the same time and in the same way. Need is an example of an inconsistent criteria of title: many parties may need the same scarce thing at the same time. Determinacy requires that it be possible in principle to unequivocally determine who owns what. Again, need is an example of an indeterminate criterion. Persons need food but it can be fulfilled in a variety of ways, so that the fact that someone needs food cannot determine what he should own. Completeness means there must be some procedure by which individuals or groups can come to own something.

With the requirements for the schema now set out, the author discusses two schemas. The first is teleological—consequentialist as allegedly exemplified by Locke. Here, the criteria of title are labor (when expended upon what is previously unowned) exchange, gift and bequest. Taken together these criteria are consistent, determinante, and complete. The rights of title in Locke are restricted only by the standard of innocent use, i.e., property may not be used in ways prohibited by natural law and the principle of harm (i.e., through wasting or spoiling which harms others through the resulting scarcity). Locke's set of property rules are justified because it can be demonstrated that no other possible set of property rules an produce as much utility within the state of nature. Clearly, the labor criterion produces utility for the laborer and it does not affect anyone's utility because of the restriction on appropriation (“enough and as good left for other”). Gift and bequest clearly raise the recipients' utility; though some expectations will be frustrated because of failure to receive what they anticipated, this will be a trivial source of disutility where “enough and as good left for others” is in operation. Exchange benefits all parties if the exchanges are voluntary.

The only criteria of title which it might be thought could produce better results than Locke's is that of want rather than labor. But want fails the consistency and determinacy conditions.

To complete the justification it must also be shown that the rights of title also maximize utility. This is easily done: the criteria give the owners maximum freedom to do as they wish, limited only by the non-harm restriction which, in effect, means that others' utility is not seriously dimished.

The author also discusses a deontological schema as set out (in part) by Alan Donagan's The Theory of Morality. This schema holds that the criteria and rights of title are justified if they are consistent with the deontological principles, in this case, the principle of respecting every human being as a rational being. It turns out that these criteria and rights of title are virtually identical with Locke's. The criteria and rights of title treat the agent as autonomous (as defined by Donagan), that is, as having the right, limited only by the moral law, of deciding what one's good is and how to pursue it. For the only restrictions on right and criteria of title as discussed by Donagan are those he thinks are required by the moral law (e.g., not to harm others). Of course, both the deontological and teleological criteria depend upon a crucial premise: that there is enough and as good left for others. Where this premise is falsified, the schema may provide a valid yet unsound justification.

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II.

Legal Theory and Rights

Legal theory and policy intimately intertwine with ethical philosophy through such shared concerns as rights, value judgments, and justice. Legal philosopher, Lon L. Fuller, who is Literature of Liberty's cover subject for this issue, was one of a handful of the critics of legal realism during the 1930s and 1940s who sought secure and nonarbitrary moral foundations for traditional jurisprudence. Faced with the lawless brutality of totalitarian ideology during this period, Fuller championed a form of natural law as an active process of rational and ethical inquiry to counterbalance the dominant legal realism. Legal realism tended to identify law with the de facto edicts of any government. Fuller and other defenders of a free and reasoned society faced a “crisis in jurisprudence” in trying to establish a rule of law that constituted a logically and ethically defensible alternative to Realpolitik. (See Edward A. Purcell, Jr. The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value. Lexington: The University Press of Kentucky, 1973, chapter 9).

The following summaries also examine the complex interplay of ethical and legal issues. Such issues include natural law and human rights, privacy in its legal and moral dimensions. The concluding summaries examine the social, moral, and legal aspects of criminal justice, contract law, Hobbesian law and authority, civil disobedience, and the proper legal discourse appropriate between autonomous lawyers and clients. Throughout these summaries run interconnected themes of rights, autonomy, and legal authority.