Eric Claeys Guest-Blogging About His New Book, "Natural Property Rights"

I'm delighted to report that Prof. Eric Claeys (George Mason, Antonin Scalia School of Law) will be guest-blogging this week about his new book, Natural Property Rights. Here's the publisher's summary:

Natural Property Rights presents a novel theory of property based on individual, pre-political rights. The book argues that a just system of property protects people's rights to use resources and also orders those rights consistent with natural law and the public welfare.

Drawing on influential property theorists such as Grotius, Locke, Blackstone, and early American statesmen and judges, as well as recent work in in normative and analytical philosophy, the book shows how natural rights guide political and legal reasoning about property law. It examines how natural rights justify the most familiar institutions in property, including public property, ownership, the system of estates and future interests, leases, servitudes, mortgages, police regulation, and eminent domain. Thought-provoking and comprehensive, the book challenges leading contemporary justifications for property and shows how property both secures individual freedom and serves the common good.

 

Comments

[Stephen Lathrop]

For fans of scholasticism, this ought to be a pleasing read.

Noteworthy, however, that the dominant-style property ownership agency in current American polity—the per-share voting corporation—goes unmentioned.

I predict another in the long chain of attempts to dignify present-minded arguments with purely decorative historical references.

[Lee Moore]

Joint stock companies date back to the Tang Dynasty at least.

There’s a nice line in one of the Aubrey-Maturin novels in which an exasperated man of business despairs of his useless intellectual son who is interested only in “the China of a thousand years ago.”

It’s amusing that you see a thousand year old custom as “present-minded.”

[Brett Bellmore]

Per share voting corporations aren't too bad. I'd be more concerned about the corporations where most of the stock is non-voting; Separating ownership and control leads to agent-principal problems.

The real problem with per share voting is that most of the stock is held indirectly these days.

[F.D. Wolf]

The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of his acquisitions, without any control or diminution, save only by the laws of the land. The origin of private property is probably found in nature, but certainly the modifications under which we at present find it, the method of conserving it in the present owner and of translating it, are entirely from society, and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty.

1 William Blackstone, Commentaries on the Laws of England 134 (1765).

[T]he right to take property by devise or descent is the creature of the law, and not a natural right.

Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 288 (1898) (McKenna, J.).

The contentions of the parties in the case [Magoun] were extremely opposite. The appellee claimed that the power of the state could be exerted to the extent of making the state the heir of everybody; the appellant asserted a natural right of children to inherit. We expressed no opinion on either contention.

Clark v. Titusville, 184 U.S. 329, 332 (1902) (McKenna, J.).

Thou shalt not steal... Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's.

Exodus 20:15-17 (KJV).

I am looking forward to these posts from Prof. Claeys.

[Brett Bellmore]

Natural rights, it must be remembered, must be Kantian conditional imperatives, not categorical imperatives. If considered to be categorical imperatives, they'd run into the is/ought problem. And there isn't actually any getting around that problem.

Conditional imperatives have the form, IF you want X, do Y. They get around the is/ought problem by being empirical statements, not moral commands: It's up to you if you want X, the "ought", all that they have to do with is the empirical IS side of the divide.

So you can't really properly discuss natural rights without first defining the goal the imperative furthers, X. Is X properly defined here?

[Krayt]

It's good to start with the baseline of property rights inherent, like life, liberty, speech, and so on.

The important thing about property is not a slip of paper in a cabinet somewhere. It's the right to use the property as you see fit. To say "there is no such thing as a right to own property" has no meaning other than someone else wants to use that property at their whim.

It is a smoke and mirrors rationale to take something from someone else and use it themselves.

As with any other right, why start on bended knee, begging for freedom scraps from self-declared masters?

[Lee Moore]

To say "there is no such thing as a right to own property" has no meaning other than someone else wants to use that property at their whim.

Quibble time. You should recall that a significant element in anti-property feeling is envy. Most anti-property guys and gals are not against the sort of property ownership that they themselves enjoy - property in beds and chairs and tables and clothes and TVs and mobile phones etc. And property in houses or condos, or cars - if they have some of those. They're against property in stuff they don't have - factories, farms, ships, jewelry, oilfields, shops and so on. Their anti-property animus is not covetousness, but envy.

It's time for my annual reminder of the subtlely different meanings of three related English words :

"jealousy" refers to the emotion of wishing to deny to others the use of what you already have - eg your house, your car, your spouse. (Note it doesn't involve wishing to deny others the use of houses, cars, spouses etc generally. Just your own.) In short - you got something, you want exclusivity.

"envy" refers to the emotion of resentment that somebody else has something that you don't have. It is the desire that the current owner should no longer have that thing that you don't have.

"covetousness" refers to the emotion of desiring something for yourself, that somebody else currently has. The covetous person does not wish to deprive the current owner of their property, unless that is the only way to get it for themselves. So a covetous person will happily take an identical Lamborghini to yours.

The envious anti-property guy is happy if your Pacific Palisades mansion is burned to the ground. It's not about wanting it for himself. It's about making the pain that he feels, that you have it , go away.

There are some good points about jealousy and covetousness. The former reinforces your care of your own - people as well as property. Covetousness is a spur to endeavor.

But envy is always and necessarily negative and destructive. You should always have contempt for the envious. The jealous and the covetous you should cut some slack.

[Rossami]

Interesting distinction. And very clearly explained. Thank you.

[TheAmazingEmu]

As a student of Professor Claeys, I was always surprised that he wouldn't get in trouble for favoring natural law arguments over the Coase Theorem. That being said, I'm excited to see this discussion.

[Jack Jordan]

So far, the best writing I've seen about rights was by James Madison. I must agree with the many who thought Madison earned the titles Father of the Constitution and Father of the Bill of Rights. When Madison presented to the First Congress on June 8, 1789, his proposals on how to improve on our original Constitution, he highlighted crucial truths about our rights designed to diminish the power of public servants to inflict wrongs.

Of course "all power is subject to abuse," and "it is possible the abuse of the powers of the general [federal] government may be guarded against in a more secure manner than is now done." So Madison proposed making explicit the most important principle in our Constitution--the sovereignty of the people. Such sovereignty already was implicit in the words and structure of the Constitution, including its first words ("We the People" do "ordain and establish this Constitution" to "establish Justice" and "secure the Blessings of Liberty to ourselves") and the first sentence of Articles I, II and III (emphasizing the People, alone, :vested" only limited "power" in particular public servants).

Even so, to further clarify and cement the sovereignty of the people (and better to safeguard against abuses of power by ANY of our public servants), Madison proposed "First. That there be prefixed to the constitution a declaration" of three aspects of the sovereignty of the people and the power of all public servants (implicitly invoking and expressly incorporating into our Constitution the sense of paragraph 2 of the Declaration of Independence):

"That all power is originally vested in and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution."

[Jack Jordan]

The language that Madison proposed on June 8, 1789, emphasized and elaborated on a crucial principle that he highlighted to persuade Americans to ratify the original Constitution. Particular powers were woven into our Constitution not to serve public servants, but to ensure that all our public servants actually do serve the public. That was the primary, overarching principle behind the creation of the federal government and the vesting in it and in its branches of particular limited powers. As Madison in Federalist No. 51 emphasized and explained:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people [e.g. via elections and the freedom of speech and press] is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of [ensuring] opposite and rival interests [by constitutional] distributions of power [has a profoundly important purpose:] the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every [public servant] may be a sentinel over the public rights. . . . .

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [national and state (aka, “federalism”], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive and judicial (aka “separation of powers”)]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.