The Morality of Property

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The Morality of Property

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Title: The Morality of Property
Author: Smith, Henry Edward; Merrill, Thomas

Note: Order does not necessarily reflect citation order of authors.

Citation: Henry E. Smith & Thomas W. Merrill, The Morality of Property, 48 Wm. & Mary L. Rev. 1849 (2007).
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Abstract: The relationship between property and morality has been
obscured by three elements in our intellectual tradition. First is the
assumption, which can be traced to Bentham, that property is a
pure creature of law.' An institution assumed to be wholly dependent
on law for its existence is unlikely to be infused with strong
moral content. Second is the related tradition, also Benthamite, of
examining questions about property law from a utilitarian perspective.
2 Utilitarianism is, of course, a moral theory. But in its modern
applications, based on price theory and cost-benefit analysis, it
adopts a framework largely indifferent to questions of individual
rights and distributive justice, which many consider the hallmarks
of a moral perspective. Third is the tradition, stronger perhaps in
academic circles than in popular thought, that associates property
with immorality. Starting with Proudhon's slogan that "property is
theft,"' and building through Marx and Engels with their call for the
abolition of private property,4 this tradition has put property on the
defensive in the minds of those drawn to thinking of public policy in
moral terms.
This Essay seeks to challenge the conventional wisdom that
dissociates property and morality. We hope to establish two
propositions. First, no system of property rights can survive unless
property ownership is infused with moral significance. By this, we
mean that the differentiating feature of a system of property-the
right of the owner to act as the exclusive gatekeeper of the owned
thing-must be regarded as a moral right; intentional violations of
this right, either by unlicensed invasions of owned things or
unconsented takings of owned things, must be regarded as immoral
acts. Second, the modern American legal system, at least with
respect to this core aspect of property, does in fact adopt such a
moral perspective.
Our claims are based on the following fundamental aspects of
property: Property is a device for coordinating both personal and
impersonal interactions over things. Consequently, property rights
must be communicated to a wide and disparate group of potential
violators; these rights are in rem.5 Because property rights need to
coordinate the behavior of large numbers of unconnected people,
they must be easily comprehended and must resist possible
misinterpretation. Law, including criminal prosecution and civil
enforcement actions, is almost certainly inadequate to achieve this
degree of coordination and compliance. Self-help, such as erecting
fences and hiring guards, is also too feeble to assure the required
degree of near-universal respect for property rights. Property can
function as property only if the vast preponderance of persons
recognize that property is a moral right, and this requirement has
important consequences for the study of property.
For property to serve as an in rem coordination device, the
morality upon which it rests must be simple and accessible to all
members of the community. We do not attempt here to outline any
theory of the origins of property. We do argue that the imperative
of in rem coordination places significant constraints on the kind of
morality upon which property must rest. Again, we do not offer any
fully developed theory of the content of such a morality. But it
seems highly unlikely that such a morality will be captured by many
forms of utilitarianism. Pragmatism is too uncertain, and casespecific
cost-benefit analysis too demanding and error-prone, to
supply the kind of robust and widely accepted moral understanding
needed to sustain a system of property.
Because the type of morality that will support a system of
property rights must be suitable for all members of the community,
to say that the essential quality of property is captured by the
familiar metaphor of the bundle of sticks is also implausible. When
it comes to the public definition of property rights, the metaphor
implies that the content of property rights continually mutates from
one context to the next as legislatures and courts add new sticks to
the bundle and take others out. Such a process would make
impossible the maintenance of a system of simple moral duties
comprehensible to all. Likewise, if the core of property law must rest
on a simple foundation of everyday morality, property is unlikely to
be wholly the creature of law. If we are right about the necessary
connection between property and morality, then Bentham is almost
certainly wrong that property arises wholly from law.6
Human rights, including rights of bodily security and integrity,
are another realm in which rights are widely held not to be wholly
dependent for their existence on the state. We will argue that
property rights and human rights have much more in common than
is often supposed. In particular, both types of rights are "in rem," in
the sense that they create corresponding obligations of noninterference
on a very large and unspecified mass of dutyholders.7
Moreover, given the communication problems associated with
creating and maintaining such large-scale duties, the content of the
respective rights must remain correspondingly simple. "No punching"
is the direct analogue of "No taking."
If property is grounded in simple moral principles recognized by
all members of society, then one can say property is immoral only by
standing outside the existing social system. This stance, of course,
is characteristic of the socialist revolutionaries who have excoriated
property: they typically have been outsiders seeking to overthrow
the existing social order.
We do not offer the in rem nature of property rights as a theory
of the morality of property. But recognizing the features of morality
that make possible a system of in rem rights helps explain the
relationship of morality and property. Nor do we claim that the
traditional everyday morality that supports property extends to the
refinements required when we move beyond simple exclusion rights
and in rem dutyholders. Beyond the core of property, the simple
robust morality supporting exclusion rights gives way to more
pragmatic situational morality. In these more rarified contexts,
decision makers can afford to let other moral considerations in,
including the case-by-case pragmatism characteristic of modern
utilitarianism, if so desired. At least the communicative cost
constraints from core property do not stand in the way.
Part I of this Essay will consider the relation of property and
morality in general. We will argue that, as in the case of human and
civil rights, the in rem nature of property rights requires support
from very simple and robust moral intuitions. To coordinate
expectations among unconnected people through the mediating
device of a thing, property must draw on a type of morality that
calls for more than pragmatic balancing. In Part II we consider a
number of areas of property law that illustrate the role moral
intuitions and condemnation play in modern American property
law. Part III will consider how situational morality plays a role in
refinements to the core exclusionary regime of property law. We also
argue that these refinements are just that-refinements-and do
not undermine the need for the morally grounded exclusion rights
at the core of property.
1. As Bentham put it, "Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases." JEREMY BENTHAM, THEORY OF LEGISLATION 111-13 (C.K. Ogden ed., Richard Hildreth trans., Harcourt, Brace & Co. 1931) (1802).
2. Id. at 1-4.
Smith eds. & trans., Cambridge Univ. Press 1994) (1840).
52 (Verso 1998) (1848) ("[The theory of the Communists may be summed up in the single sentence: Abolition of private property.").
5. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of
Property: The Numerus Clausus Principle, 110 YALE L.J. 1, 8 (2000).
6. BENTHAM, supra note 1, at 111.
7. See J.E. PENNER, THE IDEA OF PROPERTY IN LAW 29-30 (1997) (defining in rem duties and rights).
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