I guess a few clarifications about the right to private property are in order (this older post was rather unsatisfactory).
Property is the set of rules governing people’s access to and control of things. Three types are traditionally distinguished: private property, common property and collective property.
Types of property
1. Private property
In the case of private property, an individual agent (usually persons, but also families, businesses etc.) has a right to private property if he or she has a right to control the object and to regulate access. Control means sole decisional authority: the individual agent is the only one who has a right to decide what should be done with the object or what should happen to it.
This right allows the owner to decide, to some extent, to do things with the object that affect other people. Private property rights include the right to use property in ways that disadvantage other people, as long as these disadvantages do not include violations of the rights of other people. For example, a factory owner can decide to close her factory. A rich person can decide to buy and own a large house even if some other families would benefit more from living there.
However, a factory owner deciding to use his factory in such a way that it harms the health of workers or of neighboring families violates the rights of these people, and her property rights do not include a right to violate the rights of others. In such cases, rights have to be balanced and the more important right (depending on the circumstances) should prevail.
2. Common property
In the case of common property, the purpose is not individual control and exclusive access, but, on the contrary, equal access to all. Common property of a park or a common grazing field, for instance, is meant to stop certain people using it as if it was private property and as if others were precluded from using or accessing it. If farmers are allowed to use a common field for their cattle, common ownership would imply that no farmer overuses the field and brings so many cattle that there’s no grass left for the cattle of other farmers. Farmers who violate this rule of common property act like the field is their private property because they exclude others from using it. (That’s also called the tragedy of the commons, to which I will return below).
3. Collective property
In the case of collective property (sometimes also called joint property), the purpose is not only equal access to all but also equal control and decisional power. The community as a whole determines, through systems of collective decision making, how the resource is to be used. Each individual’s use is subject to a decision process to be concluded to the satisfaction of each of the co-owners – or of a majority, depending on the type of collective decision procedure. Collective ownership of a farm, for instance, means not only that all farmers belonging to the collective have an equal right to access the farm (as in common property), but also that all farmers have an equal say in the management of the farm. The latter is not (always) the case in common ownership: equal access to a commonly owned park does not (necessarily) imply an equal say in the management of the park.
When does property make sense?
In many cases, talk of property only makes sense under conditions of scarcity. In the case of private property, there would be no reason to demand exclusive control over and access to things if these things were so numerous and abundant that no one else would want to control or access what you want to control or access.
And yet, in the case of intellectual property for example, which is by definition, in our age at least, anything but scarce given the means of reproduction, we still talk about private intellectual property in the sense of exclusive control of access. But in general, it makes sense to view private property as meaningful only in circumstances of scarcity. (Perhaps that’s a good reason not to talk about “intellectual property” at all). The same is true of common property: if the whole wide world were a park, there would be no risk of some people excluding others from accessing it, and hence no need to talk about the common property of the “park”. And the same is true for collective property.
What does property require?
First, it requires rules. It only makes sense to view types of ownership as rule based. Property is in essence a rule. You can’t say that something is your property simply because you have it, hold it, exclude others from it etc. You have property because there are social rules granting you property of something and granting you rights to defend it. People should not rely on their own strength or willingness to cooperate in order to defend their holdings.
Because the state intervenes in the enforcement of property rules and rights, it’s important to have a morally sound justification of those rights. Hence, property also requires a justification. We wouldn’t want the state to use its power for immoral or unjustified ends. I’ll focus on the justification of private property in the remainder of this post because that’s arguably the most common type and the one that most often raises moral issues.
Some of those issues are the morality of taxation and eminent domain, the needs of the poor, the justification of redistribution, the property we’re allowed to own (guns?) or sell (organs?), the things we’re allowed to do with our property (shoot our gun at people? suicide?) etc.
Justifications of private property
What is the point of private property? It must have some moral value, otherwise the moral issues just cited wouldn’t arise in the first place and private property wouldn’t receive legal protection. From the discussion above, we know what private property is, which other types of property there are, which rights property entails, when it is likely to make sense, and what it requires. But we don’t yet know why there should be private property. Some would say that there’s no way for property rights to come about or to be justified because if you go back far enough in time – and sometimes that’s not very far – all “property” is in fact the result of theft of commonly owned resources.
John Locke is famous for his attempted justification of private property. My body is my own and my property, and hence I also own the power of my body. Through labor I incorporate the power of my body in the goods I produce. By working on an object, I mix my labor with the object. If someone wants to take this object away from me, he also takes away my labor, which means that he takes away the power of my body. He therefore uses my body, which is incompatible with my right to possess my own body.
However, justifications like these tend to be very shaky. Hence, I think it’s better not to focus too much on the ways in which, historically or theoretically, a right to private property has/can come about in a world that’s originally equally owned by all. We should rather think about what would happen when a right to private property, taken as a given, would disappear, and distill a justification from that (in other words, trying to look for a consequentialist justification).
We can, in fact, without much trouble, list a number of harms that would result from the elimination of a right to private property. Kant defined property as “that with which I am so connected that another’s use of it without my consent would wrong me”. What wrongs would that be? Here’s a tentative list:
- Private property is a means to protect the private space. Without private property, without your own house or your own place in the world, and without your own intimate and personal things, it is obviously more difficult to have a private life. The four walls of your private house protect you against the public. Without private property, there is no private world (another example of the indivisibility and interdependence of human rights).
- Just as there is no light without darkness, there is nothing common to all people and no public space without private property. So private property protects publicity, commonality etc. Freedom of speech, one of the most public acts, is difficult to imagine without privacy and secrecy, and hence without private property.
- Independence, self-reliance, autonomy, and therefore also freedom, are important values, and these values rely heavily on private property.
- Private property is also important for the creation and maintenance of relationships. You have your own house and your own place in the world, but not in the world in general. You live in a particular world, in a very concrete social context of friends, enemies, neighbors and other types of relationships. A place in the world is always a place in a particular community, even if you have to transcend this community now and again. And it’s difficult to imagine a place in a particular community without you own home and hence without private property.
- Private property is an important tool in the creative design of your personality, especially, but not exclusively, when you are an artist.
- It is obvious that without private property there can be no help or generosity. Generosity and the absence of egoism are important for the preservation of a community.
- Private property prevents the tragedy of the commons, referred to above. If everyone has free access to a piece of land for example, then no one has an incentive to avoid over-usage. Every additional cow an individual introduces for grazing brings full benefits to the individual, whereas the costs of overuse resulting from the additional cows are shared among all individual users of the land. Conversely, the benefits of any individual’s self-restraint will accrue to all the other individuals whether or not they also exercise self-restraint. Individual self-restraint is ultimately useless unless all cooperate, which is unlikely because the benefits of self-restraint for each individual are outweighed by the benefits of overuse. Only private property allows people to reap the benefits of self-restraint.
- The right to private property, and in particular, the right to your own house, is linked to the freedom to choose a residence, which again is linked to the freedom of movement (again another example of the indivisibility of human rights).
- As already mentioned above, you also own your own body. Your body is part of your private property. It is something that is yours; it is the thing par excellence that is your own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, access it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination, and therefore, the right to die. You carry prime responsibility over your own body and life.
Property is therefore an instrumental value, one which serves the realization of other values.
All these advantages of private property are advantages for everyone. Hence, everyone should have a right to private property, which may imply the need for some kind of redistribution benefiting those people who don’t have enough private property to realize all the benefits of private property (for example the homeless). Hence, the right to private property can be an argument against redistribution, but also one in favor of redistribution.
Private property as it is described and justified here is of course an ideal. The real existence of private property, and its actual distribution in the real world never matches this ideal, as is the case for all human rights. Property is often used to oppress others, and many people can never reap the full benefits of property. In the words of John Stuart Mill, the laws of property and the actual distribution of property have never yet conformed to the principles on which the justification of property rests.
But even in the ideal world, a right to private property is not absolute, nor is it absolutely beneficial, as I stated in the definition in the beginning of this post. Property can conflict with other values. There’s no way to escape value pluralism.
- Property Rights, Eminent Domain and the “Ground Zero Mosque” (volokh.com)
- Kagan’s Testimony on Property Rights (volokh.com)