A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Tuesday, October 20, 2009

Property and the Philosophers (Part II)

In my previous posting I gave some reasons — rather scattered and ill-digested ones, I’m afraid — for why we should be sceptical about the standard philosophical account of private property, namely that of absolute ownership. Not that I’m against private property, for you won’t find a socialist bone in my body. But when we look at the legal concept of property, we find that it’s not as private as classical liberal philosophers (what Americans call libertarians) tend to make it out to be. And the fact is, property is foremost a legal concept.

I would now like to offer an alternative account of the way philosophers should think about property, one quite different from the absolute account already considered. I cannot take credit for it. I came across it in a wonderfully thought-provoking book of comparative law by James Gordley, entitled Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (Oxford: Oxford University Press, 2006).

Gordley himself admits to following the lead of the Aristotelian tradition on the subject. In Book 2 of his Politics, Aristotle gave what I take to be one of the best defenses of a regime of private property yet expounded. I cannot go into the details of his arguments here. What’s characteristic about them, and indeed of his approach to moral and political philosophizing in general, is his analysis of institutions in terms of teleology: if you want to understand the principles underlying an institution like private property, you must understand the ends those principles serve. For Aristotle, the end was the good life, and property was the material basis of that life.

In the case of private property, Gordley identifies two main Aristotelian ends served by a regime of private ownership: (i) it enables property to be put to those uses that are most conducive to the good life, and (ii) it prevents quarrelling over what those uses are. Both of these points are subsumed under what Aristotle takes to be the ultimate end of all human action: the good life, or what in Greek he calls ευδαιμονια (“happiness”, or better, “flourishing”). It is important to remember that, for Aristotle, the good life cannot be lived alone. Therefore, the Aristotelian good life is inseparably bound up with the common good.

Private Property Is Conducive to the Good Life

If property were held in common, people would not be optimal stewards of it, in part because they would not enjoy all the fruits of their labour in it, and in part because of the danger of free-riding: why should I trouble myself over working the land and being a good steward of it, when I can rely on others to pick up my slack? And since no one wants to be a sucker, we’d all be sorely tempted to free-ride.

Furthermore, let us characterize common ownership as a system where everything is owned by everyone. In such a system, says Aristotle, no one would really own anything. For example, I would not have the right to pass any of that property on to my descendants, nor to give anything away in gifts, because I cannot give what is not mine give — any property belongs to the community.

Gift-giving is an example that gets to the heart of Aristotle’s argument. Gift exchange, besides being an expression of an individual’s free will, is also an institution that underpins much else. For instance, it plays a large role in the relation of friendship. And if you accept that friendship is a necessary part of the good life (which it must be), then common ownership would be detrimental to the good life. Life under common ownership would be life without giving and without friendship.

(Interestingly, in the post-Communist age, we are perhaps better placed to test Aristotle’s claims empirically. I would venture to say that they were valid, though quite exaggerated.)

Private Property Prevents Quarrels

It is presumed by Aristotle, with some justification, that a private owner is best placed to judge what would be the best use of the property at his disposal, if for no other reason than that he is in regular and close proximity to it. He is certainly in a better position than, say, a modern socialist planning board would be.

But even if a private owner is occasionally wrong, his mistake cannot be as detrimental to society’s flourishing as the mistakes caused by such a planning board, which could make the same mistake with everybody’s property. Private ownership spreads risk and doesn’t put all of society’s eggs into one basket, as it were.

In addition to all of this, there is the certainty of title that private property affords, and it is this that I believe Gordley and Aristotle have foremost in mind when they speak of the prevention of quarrels. Imagine that there is a certain parcel of land and that I believe it would be best to sow it with soy beans, while you believe that it would be more profitable to grow barley on it.

Now imagine what would happen if this dispute were to occur in a regime of common ownership. A couple of possibilities immediately present themselves. One is that we would simply have no recourse but to fight it out. Another is that neither of us gets to decide, because the state and its appendages are the final arbiter. The first option is messy, but I’d at least have a fighting chance (so to speak) of getting my way. With the second, there is the possibility that we’d both be disappointed, because the state’s economic planning agency might decide that the land would be more useful as a parking lot or a weapons testing range.

Under a regime of private ownership, the quarrel should not arise in the first place: both of us would know that whoever owns that parcel of land will get to decide how to use it. If it is neither of us, then there is no ground for a quarrel; if you own it, I know I must defer.

In the remainder of this posting I’d like to turn to a couple of examples where the law seems to interfere with private ownership on the absolute conception of property, but which can be made sense of according to Gordley’s and Aristotle’s scheme.

Adverse Possession

In the common law, adverse possession is the acquiring of title to another’s real property without their consent and without compensation, by way of uninterrupted possession for a specified period of time (the length of which may vary from jurisdiction to jurisdiction). Most legal systems have some similar norm; in Roman law it was called prescriptio, and the required period of uninterrupted possession was normally two years.

Obviously, a doctrine like adverse possession, which involves the non-consensual interference with an owner’s title to property, is difficult to reconcile with the absolute conception of property. Can the Aristotelian approach make sense of it?

Yes it can. Remember, on the Aristotelian account, the rationale for private ownership is (i) to allow property to be put to uses most conducive to the good life, and by extension, the common good, and (ii) to prevent quarrels over what those uses are, by providing clear title to property. What doctrine of adverse possession says is that the previous owner has subverted both of these principles. Through his negligence he has both allowed the property to be put to no use, and he has furthermore allowed the title to become muddled and disputable through disuse. Therefore, his expropriation can be justified under the very principles underlying the private property regime.

What we can take from this example is that ownership is not absolute. Rather, you own at the sufferance of society, because it is best for society in the long run for such a rule to be in place. But if you subvert the purpose of the rule, your title is revocable.

Interestingly, legal jurisdictions which have developed a reliable system of land registry tend to render acquisition of title by adverse possession obsolete (an example of this is Germany). This is reasonable insofar as such a registry leaves no possibility of muddled title. But it is difficult to see how allowing absentee owners to let their property fall into disuse can serve the common good.


Most legal systems allow a defense of necessity for the damage or expropriation of another’s property in situations where there is exceptional urgency or manifest benefit to the public. Two such situations are starvation and creating a firebreak.

If I am starving, may I be excused if I steal a loaf of bread from you to feed myself, provided I will not cause you to starve by doing so? And if I am allowed to do this, do I then have a duty to compensate you for it? Thomas Aquinas, an Aristotelian, argued that not only can I take your bread, but I don’t owe you any compensation for it (Summa Theologica II-II, q.66, a.7).

I am also permitted to destroy your home in order to create a firebreak, without being obligated to compensate you. (It should be noted that at least one Roman jurist thought this defense should be restricted to magistrates — see Digest

How can we make sense of these examples? Again, remember the principles underlying private ownership: putting property to its best use, and preventing quarrels over what the best use is.

On the first head, in the examples of starvation and fire breaks, preventing the action in either case cannot possibly be the best use of the property in question. On the second head, in each case the manifest urgency of the need is such that there cannot be any reasonable quarrel about what the best use would be. In the given circumstances, it would be difficult to justify a use more conducive to the good life or the common good than the prevention of death by starvation or the destruction by fire of the property of a greater proportion of the community.

What is perhaps more surprising in cases of necessity is the lack of a duty to compensate. But I suppose this can be explained by saying that in such cases, no wrong was committed which could generate such a duty. There is no fault (or culpa in Roman law), and so no compensation is required. In any case, this seems to have been Aquinas’ position.

Monday, October 19, 2009

Property and the Philosophers (Part I)

I am no longer much involved in academia, but if I was, I think I know where I’d like to continue my research. I’ve often noticed that political philosophers, particularly those with classical liberal or libertarian commitments, employ certain concepts from other disciplines, while remaining largely ignorant of how they’re employed in those fields. With their penchant for abstraction, philosophers have a tendency to turn such concepts into ideal types, while hopelessly distorting them through ignorance of their rich history and social context.

In particular, I’m interested in two examples of this phenomenon. In the first, political philosophers talk about and either justify or criticize the institution of private property, based on an absurdly simplistic notion of what property is and ignorance of how it functions as a legal concept. In the second, many such philosophers like to employ the notion of a social contract to understand the nature of the state and of political authority, while knowing little about the legal concept of contract.

I’ll devote this post and the next to property, and a future one to contract.

Real vs. Personal Property

Let’s begin with the distinction between real and personal property.

Too often philosophers (e.g. John Locke and Robert Nozick), when dealing with property, confuse the distinction between real and personal property, treating the former as if it were the latter. From this mistake they get some strange ideas about the nature of property ownership. Foremost among these strange ideas is that of absolute ownership, given expression in the Latin tag ius utendi, abutendi, et alieni (“the right of use, abuse, and alienation”).

Locke notoriously tried to base the right to private property on the right to ownership over one’s physical self. You own your own body. Therefore you own the labour of your body, and by extension you own the fruits arising from that labour.

This scheme raises as many questions as it answered. Will any labour do? For example, if I go to the trouble of pouring my beer into the lake, and presuming the lake is previously unowned, do I thereby gain ownership of the lake? One answer to this question has been that only labour that adds value to a thing will give you rightful ownership over that thing.

Another problem was that, at least in Locke’s time, one actually did not have absolute ownership over one’s body, because one did not have the right to abuse it by committing suicide, nor did one have the right to freely alienate it by selling oneself into slavery. As a matter of fact, for Locke, it was actually God that owned our bodies, while we merely hold it in trust, subject to good behaviour (i.e. by conforming to certain divinely promulgated laws of nature). So even in Locke, the supposed exponent of absolute ownership par excellence, we can see that there are limits to the rights of ownership.

Absolute ownership is a concept that generally works well enough in the context of moveables or personal property. For example, few would dispute my right to use, abuse, or freely alienate a book that I own, however much it might pain them to watch me crack its spine and scribble notes on its pages. (Although even with personal property there are exceptions to absolute ownership: do I have the right to abuse my dog or cat?)

Every legal system makes some distinction — among others — between the type of property I can do with what I like because society takes no interest in it, and the type that society takes an interest in and will put constraints upon the exercise of its ownership, for the sake of the common good. Roman law put land, slaves, and certain kinds of livestock in the latter category, which made sense in an agrarian society. These types of goods were not freely alienable without going through a rather elaborate and ceremonially archaic procedure of sale called mancipium. Property requiring or not requiring mancipium were called, respectively, res mancipi and res nec mancipi. The former could, with considerable stretching, be seen as analogous to real property in the common law.

A further Roman law distinction was between two different kinds of rights to which property could give rise. Roman law distinguished between rights in rem and rights in personam. In the latter, your right was not to the thing itself, but against the person possessing it. If that person went bankrupt, you had to line up with all the other creditors. But if you had a right in rem, you got your property back before it went into the common pool of liquidity. At the risk of considerable oversimplification, it was normally the case that ownership of real property, or res mancipi, gave you a right in rem to it.

Besides making fundamental distinctions between different kinds of property and the rights and duties attached to them, Roman law also put considerable constraints upon the exercise of ownership, particularly of real property. For example, in Roman law an action was available by an heir presumptive against his father for wastage of the patrimony; the father could be turned out from his estate in favour of his son if it was found that he was squandering it to the detriment of his heir. It seems that the Romans viewed ownership of real property as more like a trusteeship: land was held in trust for the good of the familia. The familia itself was conceivable as a kind of corporate entity that one owed duties to, for just as one had a duty to preserve its material basis (i.e. its real property) for future generations, one also had the duty of preserving its sacra or religious rites, a large component of which involved honouring past generations of ancestors. In such a system, ownership could be a heavy burden, not the sort of unadulterated freedom that libertarians imagine in their possessive utopias.

Feudal vs. Allodial Ownership

If Roman real property ownership seems very constrained, English common law ownership was once just as much so. English real property law was — and to a large extent still is — based on the feudal system of social and economic organization. Feudalism still casts a long shadow, even though no one would say that the English-speaking countries are feudal in organization.

When King William conquered England in 1066, he thereby became owner (by right of conquest — though I hate the term) of its lands. For reasons of security and administration, he doled out parcels of this land to his supporters and followers, but with strings attached. The recipients became the King’s sworn liegemen, obliged to provide service to the Crown, usually in the form of military service. These liegemen in turn doled out parcels of their land to their followers in return for specified services, and so on.

We can imagine pure feudalism this way: you didn’t own land in the modern sense; rather you held it in “tenure” (from the Latin tenere, “to hold”) from someone, in return for certain rents or services. Tenure was not about one’s relationship to the land, but about the relationship between a tenant and his lord next up the feudal chain. In a sense, everyone (with the possible exception of the King) was a renter.

There were as many possible constraints on the freedom one could exercise over one’s property, as there were possible services one could owe to one’s lord, from providing knights for war, to providing a red rose at noon on Midsummer Day. You name it.

There are some constraints in pure feudalism that were nearly universal, and which sound very unlike the modern notion of property ownership. One could not freely alienate lands without permission from one’s lord, and this included leaving it to your heir in a will. It came to be the custom that your son would be allowed to inherit, subject to the payment of a fee called a “relief”. But it had to be your son, and it had to be the eldest son (this made sense when tenure was based on the ability to provide military service). And if that son was a minor, then your lord had wardship over him until he came of age, which meant that during the wardship he would collect the fruits of those lands. Also, you owed a fee towards the costs when your lord’s son was knighted, as well as towards the costs of his marriage. These fees were called the “incidents” of tenure, and for the lord they could be worth more than the nominal rent he received for those lands.

In short, under feudalism, there were so many strings attached to “ownership” that it seems almost improper to use the word. On the absolute conception of ownership, one has exclusive ownership of land, while in feudalism, one can only speak of having rights in land, which were not exclusive because others also had various rights in the same land, depending on one’s place in the feudal chain.

When John Locke writes of property as being the expression of meum et tuum (“mine and yours”), he is speaking of the absolute conception of ownership, in which a thing’s being mine, means that it cannot be yours. This conception, however well it may have worked when applied to moveables, did not translate so well into the language of feudal real property. And remember, in Locke’s time, English land law was still quite feudal, certainly more so than now.

We can see the shadow that feudal ownership still casts if we compare it to what would seem to be its opposite, namely allodial ownership. You own land allodially if you owe no rents or services to anyone, and you basically have what we have been calling “absolute” ownership. In Europe there were here and there pockets of land that for whatever reasons, did not come within the feudal system, but were owned independently of any lord. These were rare, and eventually most of them were feudalized.

In common law countries the situation is different: there is no such thing as allodial land in the UK, Canada, the US, Australia, and New Zealand. We can largely thank William the Conqueror for that. When he conquered, he conquered everything, so that ultimately everyone who held land held it from him.

Here at last, you might think, is at least one example of absolute ownership: the Crown, being at the top of the feudal chain, is absolute owner of lands, with the rest of us being merely renters. But not so. For one thing, it was always recognized that the King, as the chief landlord, owed duties of protection, etc. to his tenants-in-chief, just as any other landlord would. Furthermore, since at least 1688, the Crown is constitutionally limited and subject to laws just like anyone else. The Queen now pays taxes on her estates.

If you own real estate, and you think you might be its allodial owner, a few pertinent facts will dispel this idea. For one thing, you probably pay land taxes; an allodial owner would not. For another, if you let your house fall to ruin, or if you stop trimming your yard, the authorities can condemn your house, or get an injunction forcing you to cut your lawn. Again, an allodial owner, having the right of abutendi (abuse), would not in theory be subject to such constraints. Finally, under the principle of eminent domain, the state may expropriate you if they have a better and more pressing use for your land (subject to the proviso that they pay you a fair monetary compensation for it); an allodial owner could refuse such expropriation, but you cannot. All these facts show that you do not have absolute or allodial ownership of your land. In fact, no one does.

To repeat, when political philosophers like John Locke and Robert Nozick defend private property arrangements, they seem to imagine that there is no difference in fact or law, between real and personal property; for them my ownership of land is no different than my ownership of a tennis racket.

In my next post, I will offer an interpretation of property ownership — not my own — which I find much more plausible than those typically offered by most modern political philosophers of a classical liberal or libertarian bent.

Sunday, October 11, 2009

Morals, Religion, and the Law

There was an interesting letter to the editor in yesterday's newspaper by one Ross Reynolds of Toronto (National Post, Oct. 11, 2009), which the editors chose to place under the rubric "Morals and the law don't mix". I found it interesting not because I agreed with it, for there is just about nothing in it I agree with (indeed, it is rare to find so much error stuffed into one paragraph). Rather, it is instructive because the errors it contains, which are fourfold, are believed by so many. The occasion which provided the context of the letter is a recent Canadian Supreme Court case attempting to do away with Canada's supposedly archaic and intrusive laws against prostitution.

(Prostitution itself is technically not illegal in Canada, but there are various laws against communicating for the purposes of prostitution which make the "trade" de facto rather difficult to ply without violating the law. It is not my purpose to comment on the specifics of the court case in question.)

I will quote the letter in full, and follow it with my remarks:

"The prostitution ban [actually, he's wrong, as there is no outright ban as such], similar to the drug prohibition, has never been successful at reducing demand and is fabricated from an outdated concept of morality. Letter-writer Paul Kokoski asks, 'How long can a democracy survive if its government passes laws that act to separate states from morality?' I would humbly suggest to Mr. Kokoski [that] it isn't the government's duty to instill its citizenry with a moral code - that responsibility should belong to the church. The greater the distinction between morality and human rights, the better."

There you have it. And now for my remarks.

1. "...it isn't the government's duty to instill its citizenry with a moral code"

Mr. Reynolds may be partly correct: It is not government's responsibility to instill a moral code, because that is the job of parents, teachers, and perhaps other social institutions (e.g. churches, schools, professional organizations, etc.). But it is most certainly the government's duty to protect an already-existing moral code, especially in those parts of it which are not at all in contention by the broad majority of society. Indeed, there are arguably few other legitimate roles which a government does have.

Now, in this I am not to be taken as implying that it is always wise or prudent for the law to intervene in morality. But the law certainly has the legitimate right to do so.

I would humbly submit that, contrary to most of the high-minded liberal claptrap you're likely to hear, prostitution is widely accepted as an immoral trade that almost all of us rather wish didn't exist (though granted its immorality lies more on the purchasing side of the equation than the sales side). It is either the source or the symptom of many a well-known social ill. And for heaven's sake, let's stop calling prostitutes "sex workers" as if prostitution is a viable career option for our daughters. If you believe that it is, and you have a daughter, then she should probably be removed from your care.

Back in the 1960s Lord Patrick Devlin, a prominent English judge, wrote a book entitled The Enforcement of Morals, in which he defended the position once held by the Victorian magistrate Sir James Fitzjames Stephen (pictured) that the government has the legitimate right to intervene in matters of morality. This position has come to be called "legal moralism" (though some of its critics would sneeringly call it "legal paternalism"). Many critics, most notably the great legal philosopher H. L. A. Hart, tried to refute him. The general intellectual fashions of the time ran very much in a liberal vein, and so it was commonly accepted by those who don't think very deeply that those critics scored a definitive victory. But they simply haven't. I do not have the space here to rehash this old debate, but I promise to do so in a separate posting in the near future.

2. "...that responsibility should belong to the church"

This is just an expression of the old canard that there is some necessary connection between religion and morality. There simply isn't. Plato ably destroyed that assumption in his Euthyphro when he asked whether the good is good because the gods approve of it, or if the gods approve of the good because the good is good in itself?

If the good is such because God approves of it, then what if God were to approve of murder and rape (as he seems to do in many passages of the Old Testament)? Would murder then become good? And can you really be said to be a good person if your sole motive for doing the right thing is hope for heavenly reward or fear of divine punishment?

If your answer to these questions is "no" - as I think it must be, then what need is there for God to serve as the foundation of morality?

3. "...that responsibility should belong to the church" (again)

The use of the definite article here should really make us nervous. Which church is the church to which Mr. Reynolds is referring? In using the word "church" he presumably means some denomination of Christianity. Which one? Hopefully not the Catholic Church, for given recent events within the Church in Nova Scotia, I wouldn't want to leave any child alone with a priest to be instructed in morality.

This is one subject where conservatives will simply have to bite the bullet: we live in a pluralistic society, where there is no established religion, let alone a church. As such, the only way we'll be able to get along in the long run is if we keep religion out of the sphere of politics and government as much as possible. This is where liberals are absolutely correct and where we conservatives need to shut up.

4. "The greater the distinction between morality and human rights, the better"

I must confess to not knowing what kind of concept a human right is if it is not a moral one. By appealing to human rights in his endeavour to keep the state out of the bedrooms of the nation, Mr. Reynolds has inadvertently got himself entangled deep within the thickets of the moral realm. If rights are a moral concept (which they are), and if the law is bound to respect and uphold them, then the law is inextricably bound up with morality. And once we are forced to make this admission, then why may not the law also concern itself with morality's broader magisterium?