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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.

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