Natural Property Rights: A Volokh Conspiracy Preview

An overview. (Or, what you can learn about property from John Locke and Monty Python's Flying Circus.)

Thank you, Eugene! This week, I'm blogging about a scholarly project long in the works. Earlier this summer, I published a book, Natural Property Rights, with Cambridge University Press. If readers are interested in the book, it's available for purchase digitally and in hardbound version, at a variety of bookstores, and it can be accessed through any library with a subscription to Cambridge UP's digital platform. Cambridge UP will also release a (cheaper) paperback version in 2026.

In my blogging this week, I am going to try to interest lawyers, law students, and nonlawyers in Natural Property Rights. That strategy may seem unorthodox, because the book is obviously relevant to philosophers and property law scholars. But I bet there are a lot more VC readers in the groups I'm targeting than the ones I'm not. And, I've already made my pitch to the scholars, in an introduction and a reply to a dozen scholars in a 2023 symposium previewing Natural Property Rights in the Texas A&M Journal of Property Law.

More than that, I hope that my posts this week are timely! This week and next, U.S. law schools are opening back up for business. At some of those schools, professors will be teaching, and students will be taking, the standard first-year Property course. My posts this week will be organized around the main topics in a 1L Property course. Today, I'll summarize Natural Property Rights's main themes; in each of the next four posts, I'll cover several of the topics covered in a 1L course.

The institution of property has deep connections to natural law and natural rights. Many U.S. state constitutions take for granted that (I'm using Virginia's constitution as an example) "the means of acquiring and possessing property" is an "inherent right." John Locke made property the centerpiece of his natural rights theory of government. And many sources in American property law reflect those connections. I'll say more tomorrow about Pierson v. Post, the "fox case." In that case, the court opinion and the dissent consulted Locke and the best-known natural law treatises—by Justinian, Grotius, Pufendorf, and others—to settle what someone needs to do to capture a wild fox and appropriate it.

Given all of those connections, one might think that lawyers and scholars appreciate how natural rights and principles of natural law apply to property. Not so, for reasons I'll explain below. Natural Property Rights tries to fill that gap. The book shows how natural rights and natural law principles supply guidance to property law, and it does so in four parts. Part I of the book introduces a mine-run theory of natural law and rights. Part II derives a specific right of property from the general theory introduced in Part I. Part III shows how that natural property right is reduced to practice, specifically in English and American property law. But property rights are protected not only in property law but also in other related fields of law. Part IV illustrates with a few examples from private law (in property torts) and public law (in doctrines about the police power, eminent domain, and regulatory takings).

What do I mean by a "mine-run theory of natural law and rights"? In normative philosophy, theories of ethics and politics are often sorted into three basic categories. Two are well-known, deontological and consequentialist. A third isn't so well-known, and people use different labels to refer to it—"flourishing," "perfectionism," "virtue theory," or "eudaimonism." Whichever of those labels one likes, traditional natural law theories are covered by them. In such theories, people have natural capacities to live, survive, reason, and flourish. The main objects of ethics and politics are to help people exercise and hone those capacities. Theories of natural law help identify responsibilities people owe themselves and one another. Since people have objective rights to do what is objectively good, those theories also help identify distinct natural rights—like the right to life, the right to bodily security, the liberty to practice a calling, and the right to associate with others.

And, the right to property. By natural law, a property right is not a right to do with an ownable resource whatever one wants, no matter what the effects are on the right-holder or on others. Since it is natural for people to survive and to try to thrive, it's natural as well for them to acquire things they can incorporate into the projects they develop to survive and to thrive. That capacity justifies a natural right, to acquire fair shares of ownable resources and to use them to produce morally valuable results. But the capacity also produces corresponding social responsibilities, to respect others' equal opportunities to as they try to exercise the same right.

So the natural right to property has four elements. To be entitled to a natural right in relation to any ownable resource, an actor should (first) use the resource productively, for his or others' moral well-being. ("Productive use" captures well what Locke meant by "labor"—or, at least, what "labor" means when justified as charitably as possible.) Since others might want to acquire and use that same resource, though, a would-be property-holder must also (and second) communicate to neighbors his claim to use the resource and enjoy the fruits of his use exclusively. Even when a proprietor acquires a natural right, the right can be challenged and limited in practice.

A necessity proviso (third) entitles people who don't have property in a resource to commandeer it and use it for their own uses if their lives, safety, or property depend on it, as in chestnuts like Ploof v. Putnam and Vincent v. Lake Erie Transportation. More generally (and fourth), a sufficiency proviso (corresponding to Locke's talk about "enough, and as good" for others) entitles others to use a resource already appropriated, if there aren't enough unowned resources available for them to acquire resources for their own uses.

That natural right can guide legal reasoning in one of two ways. In a few narrow cases, officials can develop laws modeled directly on the right, as cooks follow recipes or as builders follow blueprints. More often, though, the natural right gives officials a standard to consult. When legislators set speed limits, they ask whether and how well particular limits secure rights to bodily security and travel. By analogy, when government officials evaluate property laws, they should ask whether and how well those laws secure natural property rights. More on that in my next four installments.

Earlier, I said that most contemporary lawyers and scholars do not appreciate how natural law and rights might guide property law. My proof comes from many first-year Property casebooks. Early on, students learn how people acquire private property in resources that weren't already owned—like foxes, whales, and oil. There and then, students often get short summaries of Locke's theory of labor.

In casebook treatments, labor seems a limited and unsatisfying basis for property. I like to describe the main criticisms as the "one-hit wonder" problem and the "one-way ratchet" problem. Labor seems to justify the acquisition (or "capture") rules that govern disputes over wild animals like foxes or whales. But labor seems a one-hit wonder because those rules are supposedly the only property doctrines labor can justify. Labor also seems a one-way ratchet because, when it does justify property, it always justifies more property. In other words, labor seems incapable of marking off limits that common sense suggests property must possess.

Those impressions are understandable; lawyers and legal theorists like theories to apply clearly, narrowly, and deeply to the topics they are expected to cover. But law is a comprehensive institution. And for a normative theory to be satisfying in relation to a broad field like property, it should apply broadly, shallowly, and with appropriate qualifications.

I also suspect that the impressions contribute to an argument by false dichotomy. If rights- or labor-based property theories seem to apply narrowly, they can be ignored wherever they don't apply. If they seem to justify rules that go against common sense, they can be ignored full stop. When rights- and labor-based theories are dismissed that way, it's easier to introduce and justify the perspectives on property in vogue today—without considering serious rivals on their merits. (The theories most in vogue today include: various fairness-based or egalitarian perspectives; law and economics; and utilitarian and expertise-driven public policy approaches, like the ones familiar from the New Deal and from Supreme Court Stephen Breyer's public writings.)

Against that backdrop, there are at least two good reasons to read Natural Property Rights. At a minimum, it helps readers evaluate rights-based theories for themselves, free from the spin they get in contemporary casebooks and booklength survey-introductions to property theory. More than that, though, the book's theory may be more convincing than the theories in vogue now. And to explain why, I ask you to think on what I like to call the "Dennis the constitutional peasant" challenge.

In Monty Python and the Holy Grail, an uppity English peasant refuses to agree that King Arthur received a divine right to rule England when the Lady of the Lake "lobbed a scimitar" (Excalibur) to him. The scene illustrates hilariously the most basic challenge in liberal political philosophy. The rule of law is entangled with the violence inherent in a political system, and the law needs to be backed by arguments capable of legitimating the violence.

As for property, a system of property law entitles some people to exclude others from accessing and using ownable resources for their own legitimate projects. Such a system is backed by the government's monopoly over violence, and it needs to be backed by arguments capable of justifying the use of violence to enforce the law. Natural rights can supply that sort of justification. In particular, the claim-communication requirement and the sufficiency and necessity provisos link the rights of property holders with the interests of people expected to respect those rights. I am not sure than any of the theories of property influential today addresses the constitutional peasant challenge as well as natural property rights do.

That's enough about Natural Property Rights's argument and its main contributions. Tomorrow, I hope to post on the topics that take up the first three or four weeks of a standard Property course. So tomorrow, then, more on foxes, whale, oil, coal, and Johnson v. M'Intosh.

Comments

[Brett Bellmore]

That's what I was looking for: The X in "If you want X, you must do Y".

To surmount the Is/Ought divide, natural rights need to be in the form of conditional imperatives, "If you want X, you must do Y". This puts them on the empirical, "Is" side of that gulf, capable of being objectively true or false. (But not compelling you to actually WANT X!)

X is "human flourishing". But how is this defined?

[Stupid Government Tricks]

Offhand, I'd say the groups you're not targeting approximate zero.

I am going to try to interest lawyers, law students, and nonlawyers in Natural Property Rights. That strategy may seem unorthodox, because the book is obviously relevant to philosophers and property law scholars. But I bet there are a lot more VC readers in the groups I'm targeting than the ones I'm not.

But then, law students seem to be targeted twice, possibly thrice.

[Stupid Government Tricks]

I hate to be so picky, but I'd hope an article which is trying to be picky about such a subject would try a little harder.

In normative philosophy, theories of ethics and politics are often sorted into three basic categories. Two are well-known, deontological and consequentialist. A third isn't so well-known

"Often" sorted into three categories, one of which is not well-known, seems a bit at odds with itself.

[Stupid Government Tricks]

I hope this improves.

So the natural right to property has four elements. To be entitled to a natural right in relation to any ownable resource, an actor should (first) use the resource productively, for his or others' moral well-being. ("Productive use" captures well what Locke meant by "labor" — or, at least, what "labor" means when justified as charitably as possible.) Since others might want to acquire and use that same resource, though, a would-be property-holder must also (and second) communicate to neighbors his claim to use the resource and enjoy the fruits of his use exclusively. Even when a proprietor acquires a natural right, the right can be challenged and limited in practice.

A necessity proviso (third) entitles people who don't have property in a resource to commandeer it and use it for their own uses if their lives, safety, or property depend on it, as in chestnuts like Ploof v. Putnam and Vincent v. Lake Erie Transportation. More generally (and fourth), a sufficiency proviso (corresponding to Locke's talk about "enough, and as good" for others) entitles others to use a resource already appropriated, if there aren't enough unowned resources available for them to acquire resources for their own uses.

The first element is well-known to me, but I have never seen that "productively, for his or others' moral well-being" phrase before. It gives me the heebie jeebies, a phrase so malleable that only a lawyer could have written it. Who determines whether a use is productive, and by what standards? Ditto for "his or others' moral well-being". It's hard for me to think of a simpler way to provide full employment for lawyers.

The second element is just common sense; people can't know to not trespass unless property is marked, with a fence, signs, or anything. Why not throw in "visible" or "accessible" or even "not disintegrated into atoms" while you're at it?

The third one, allowing others to take property if their "lives, safety, or property" depend on it, reminds me of those libertarian purity tests about the 25-cent rocket part and the 9th-floor flagpole, but in the light of that awful creepy phrase in the first element, and the entirety of the fourth element, sounds like more lawyerly full-employment quibbling. Who determines that dependence? Lawyers, of course.

The fourth element is the worst of the bunch, as if the author has never heard of prices or markets. You want to build a house but no unclaimed parcels are available? Just take one! No need to make an offer to buy one, no need to even ask, just take one!

I take back my first comment, that his non-targeted audience approximates zero. This book certainly doesn't target me.

[Brett Bellmore]

"The first element is well-known to me, but I have never seen that "productively, for his or others' moral well-being" phrase before. It gives me the heebie jeebies, a phrase so malleable that only a lawyer could have written it."

Sounds Georgist. That's the original theory behind property taxes: Tax property owners based on the most valuable use of their property, to force them to either use it that way, or sell to somebody who will.

[Stupid Government Tricks]

Maybe it is. I don't understand Georgist land value at all. I spent several hours once googling and trying to find some simplish explanation, and it seemed like every explanation, justification, and defense was different, as if Georgists themselves don't know what it really means.

I got into an argument with one Georgist. My land value is based on what my neighbors / community do to improve their property's utility and make it more valuable, thus discouraging me from having an empty lot in a city. I don't like that kind of nudging, but I can at least understand it.

But it seems to me to encourage massive development on one parcel surrounded by empty parcels — such as a 100 story self-contained community surrounded by unowned land. The end result of that process would be skyscraper cities 10-20-who-knows miles apart with none having enough land value to generate any meaningful tax. Any farms nearby would have their own taxes raised so high they'd have to sell out for more skyscrapers, but no one would want to buy for that purpose because the point is to build away from other developments, so the farmers would have to either keep farming and make food really expensive, or abandon their farms and stop growing food.

Sure it's impractical. But I could not get that Georgist to even admit that was what the land value tax would encourage. I've long forgotten all his complicated reasoning, but it didn't match anybody else's. I happen to think the fairest tax is a self-assessed property tax, because it can be anonymous (the government knows what to confiscate if no one pays the tax) and is relatively proportional to income, and enforcement by snitches seems straightforward. But I at least acknowledge its drawbacks (it is a wealth tax, and it does encourage snitches). Georgists can't seem to come up with simple coherent explanations.

[TheAmazingEmu]

This looks like a fascinating book I won't have time to read or justify the expense of purchasing. I do agree natural law arguments get short shrift in law school - unless you're a GMU student taught by Prof. Claeys. Then you're just probably tired and confused and have no idea what is going on because it's a four credit 1L Property Law class.