Natural Property Rights: A VC Preview
Foxes, whales, and injustice toward the property claims of aboriginal tribes.
I'm blogging this week about my new book Natural Property Rights, published with Cambridge University Press and available for purchase now digitally and in hardbound version, at a variety of bookstores. Yesterday, I summarized the book's normative theory. I also promised readers that, for the rest of this week, I would explain how that theory applies to property through the prism of a 1L property course.
Before starting, let me explain in a little more detail two points I made yesterday. First, in a natural law framework, a natural property right isn't a sweeping right of autonomy. When people want to establish rights in relation to particular ownable resources, they need to satisfy two requirements: They must put the resources to morally-productive uses, and they need to communicate to their neighbors their property claims reasonably clearly. Even then, the rights are subject to two provisos: one for cases of necessity, and another when proprietors' claims leave neighbors with insufficient access to resources like the ones covered by those claims.
Second, that right supplies some but not complete guidance to legislators, judges, and other public officials, for evaluating how just particular property laws are. Rights focus the discretion lawmakers exercise when they set laws—somewhat, but not completely. Many natural lawyers describe that discretion as "determination" (a term associated with St. Thomas Aquinas). Legal philosophers like to illustrate that discretion with speed limits. Although legislators exercise a lot of discretion when they set speed limits, in all of those exercises they're trying to coordinate the rights of drivers to travel where they want, with the rights of drivers, cyclists, and pedestrians to be secure in their persons and property. A natural property right supplies about the same guidance for conventional property laws.
Start first with ordinary acquisition doctrines. Acquisition doctrines raise two basic policy questions. Assume an ownable resource isn't yet owned. Should it be converted by law into an ownable resource? If so, who should get to own it? The first question doesn't have any single answer. Some resources are hard to break up into discrete units of property (light, or airspaces) and some (big bodies of water) lend themselves to concurrent and common uses. Resources like those are bad fits for private property thanks (respectively) to problems highlighted by the claim-communication and the productive-use requirements.
But consider the fox at issue in Pierson v. Post (N.Y. 1805), the case in which Pierson killed and took away the fox Post was pursuing closely on a hunt with hounds. A fox is a good candidate for private property. After all, it is easy to demarcate property in a single fox, dead or alive. And animals can be put to many valuable individual human uses—in Pierson, all the uses to which a pelt might be put. And a capture rule is a sensible way to answer the question who should get to own an unowned fox. When someone captures a fox, he broadcasts reasonably clearly to everyone else that he means to use it for his own private purposes.
Now, Pierson's capture doctrine tracks one of the elements of a natural property right but not all four. A legal capture rule doesn't require fox-capturers to put foxes to beneficial uses. Nor does it recognize exceptions corresponding to the necessity and sufficiency provisos. But those omissions seem reasonable adaptations to practice (i.e., reasonable determinations). A legal system can address different policy concerns in different doctrines—as the necessity defense does for the necessity proviso. And as for productive use, it's reasonable for law to rely on a generalization. Other things being equal, the first person to catch an animal is probably the most likely person to put it to uses that help people survive or thrive.
Obviously, though, an "other things being equal" generalization doesn't always hold, and bright-line capture doctrines may not always seem reasonable adaptations to practice. 1Ls often consider the limits of such doctrines with Ghen v. Rich (U.S. District Court, Mass., 1881), Ghen sued Rich to recover the value of a whale carcass. One of Ghen's whaling boats harpooned a whale off of Cape Cod, Massachusetts and left in the whale a lance with Ghen's company lance-mark. But the whale escaped, died later, and washed to shore on a private beach owned by Ellis, who then sold the carcass to Rich. Rich argued that Ellis had captured the whale when he claimed it on his beach; Ghen insisted that his whalers had captured it when they harpooned it.
Under a rule of capture as strict and literal as Pierson's, Rich should have won. Along the New England coast, though, a custom departed from a bright-line capture rule. Under the custom, if a whaler harpooned a whale, and if the harpoon had on it a mark associated with the whaler's company, the whaler captured the whale. The Ghen court concluded that the custom superseded the common law rule as stated in Pierson, and that Ghen had appropriated the whale before Ellis tried to take it.
The high-level imperatives are the same for foxes and whales—to assign a right in a resource that isn't yet owned to the first person to use it and claim it. But it takes a lot more investment, effort, and risk to reduce a whale to complete control than it does to catch a fox. Those activities all affect the whaler's claim of right, and the productive use requirement explains why. But although the whaling custom relaxed the strictness of the capture rule, it didn't eliminate that rule. The custom still required the whaler to communicate his claims—by whaling with company marks on his harpoons.
Now, in acquisition disputes as in most other property disputes, the focus is on securing the rights of all the parties. A resource that could be owned isn't yet owned, and officials are looking for signs that one person has done more than anyone else to start using that resource in human society. When officials are conducting those inquiries, they aren't looking at the races, backgrounds, or political statuses of the parties before them. Unfortunately, however, officials aren't always that dispassionate. And when officials are really determined to be unjust, natural law and rights can exert little influence on positive law.
That is one of several unhappy lessons from Johnson v. M'Intosh (1823). In Johnson the U.S. Supreme Court settled a dispute over title to lands in what's now Illinois. M'Intosh purchased the land in dispute from the U.S. government. Johnson and Graham argued that the U.S. government hadn't had title to sell, because Native American tribes had held the relevant land and sold title to their predecessors in interest.
The Supreme Court sided with M'Intosh. The Court concluded that title to the relevant lands was governed by a "first European discoverer" rule followed consistently in the U.S. and among European colonial powers. Under that rule, Native American tribes and tribal members could hold limited rights to use land, but no legal authority to alienate their rights.
I'm passing over a few complications in Johnson. The United States and different Native American tribes constituted distinct political communities, the stakeholders in any one community don't need to do as much to respect the natural rights of people from other communities as they should for members of their own community. Still, political communities shouldn't violate the rights of nonmembers, and the U.S. did violate the rights of Native Americans through its land laws and policies. Chief Justice John Marshall hinted as much. The first European discoverer rule went against "principles of abstract justice," he suggested, and it constituted an "extravagant … pretension" and was "opposed to natural right." But the rule was "indispensable" to American legal practice and the secure title of land in the United States, and that being so it could "not be rejected by Courts of justice" in the U.S.
Johnson is often interpreted to show that property law is a creature of positive law and not natural law. Is that so? For the most part, yes.
Natural rights give positive law goals or points, ideals for officials to pursue if they are conscientious. But the natural law and natural rights require also that there be some bare minimum of law in a society. And if a majority of citizens and the leaders in a society are not conscientious, if they are dead set on denying the rights of others, they can reduce their unjust desires into positive law. In those situations, officials have no freedom to consult natural rights as they administer and shape law. (Think of the concession in Federalist essay 78, that the "judgment" of the judiciary is far weaker than the "sword" wielded by the executive.) Then, natural rights can only serve as standards for criticizing existing laws, as they did during antebellum debates over slavery and post-World War II debates over Jim Crow.
Tomorrow, I'll cover two other topics. Can use-based natural property rights justify the broad autonomy conferred in law by ownership? And, can the natural rights justify doctrines that divide up ownership rights … as Anglo-American law does via estates and future interests?