Building the Cathedral as Sanctuary: Recognizing Action as the Basis of Property

Beginning of article

On July 20, 2009 a 41 year old LOBSTERMAN from the island of Matinicus was shot in the neck over a property dispute. (1) The islanders, like many Northeastern Lobstermen, have a property regime in place that is enforced by a series of acts against lobster traps that violate the rules, from simple marking of traps and intimidation of the violator to near total destruction of traps or boats. (2) The local fishermen had developed a system to control the waters to protect against the open access problem of overfishing but because the state law refuses to recognize the system challengers are encouraged to try to fish in waters without permission from the locals. As one marine colonel said, "We don't let them do their cowboy thing." (3) The shooting is related to a long standing dispute about which a non-islander brought pending conspiracy charges against a number of Matinicus residents, on the theory that the group planned destruction of his invasive traps. (4) Further complicating the story, the plaintiff in the conspiracy case alleges that the group of residents had conspired with state enforcement to enforce the property scheme, despite being recognized as unlawful. (5) If such a violent escalation is to be avoided, what property regime should be supported, and how can this result be generalized?

I. Introduction

The sole value of law is justice, and thus property law should only admit those property regimes that minimize coercion among the parties with conflicting claims. The goal of minimizing coercion is the real aim of actors seeking justice, as the ideal for justice is a state of zero coercion amongst actors (in property law as well as law generally) though this ideal may not always be entirely realizable. Because determinations of coercion are subjective (i.e. one reasonable observer may disagree with another over what actions are coercive and which actions may be more or less coercive than others), property law and its enforcement must be voluntarily supported else itself be coercive and unjust. Property law then should be limited to reducing coercive action in property conflicts, with costs of enforcement absorbed by the actors involved in the conflict and those voluntarily supporting such enforcement measures.

By developing a theory of property based on purposeful action, a simple construction of the qualities of property emerge and coercive action is quickly shown to be the equivalent of making a property claim in the will of another. This equivalency gives the observable measure by which conflicting property claims can be judged by any actor seeking to provide justice, whether party to the conflict or an exterior observer. Before analysis of the consequences of such a framework, historical notions of property are explored in terms of the action theory of property to delineate how and why they agree or disagree. Most accepted bases of property do indeed relate to the interaction of some actor and the physical world, and the differences in the conclusions of these theories from the action theory of property are few, but they can be clearly explained as the introduction of some form of coercion in the historical theory.

Some important historical theories remain valid as tools of calculation for individual property owners, or courts sitting in equity to balance the competing values each party wishes to preserve in the property. Other property theories may need to be supplanted for being necessarily faulty in its base assumptions, though even these may be saved by a reformulation that takes account of action, coercion, or subjective valuations.

With these comparisons in mind, the normative foundation for accepting the action theory of property begins to take shape. Because the theory gives a workable explanation of property in any context and allows fixed definitions of concepts such as value of property and justice which aide in analysis of property conflicts, it should be favored over decision making tools that look to only calculations of narrowly defined costs or make unfounded assumptions about the behavior of individuals or groups of actors. While balancing the ideal of no coercive action in the world with the realistic environment of action, the measure of net-coercion in a conflict gives information on how to act in response to property claims of other actors. Presuming that the minimization of this measure is the goal of law as provider of justice, property law is then only consistent if its enforcement adds no net coercion to conflicts. This consistency is explored to highlight the generalization that the action theory of property binds property law to voluntary enforcement, at least for actors external to any given conflict.

Accepting this action theory of property also dictates a number of corollaries about property law, property claims, and the enforcement of just property regimes. These corollaries will be supported with both the analytical framework of action as well as empirical observations of successful and lasting property regimes that minimize the use of coercion, and contentious property regimes that rely on an observable amount of unnecessary coercion. With these practical applications identified, some property regimes will be suggested to promote solutions to current or potential problems, and a final argument will be made that minimally coercive property regimes are not only theoretically demanded by notions of justice but are also the most evolutionarily fit solutions, burdening those who support property regimes that are unsustainable and benefiting those who support regimes that are focused on long-term stability.

II. The Praxeology of Property

"To every action there is always opposed an equal reaction." (6)

Property is the object (either ends or means) of meaningful action, and as such is determined by the subjective values of each actor. Viewed in this light any non-definitional discussion about property relates to resolving conflicting claims of actors. But before any conflict can be analyzed, the nature of claims and property must be understood.

By the broad definition of property as an object to some verb it might appear that any notion of property is completely arbitrary, and can take any form. However, there are still some basic qualities that anything properly called property must possess. First, an object must be purposefully changed by an actor and the property claim is strictly contained in, but not identical to, this change. (7) This prevents property from being completely imaginary conceptions or undiscovered remote lands or any ad coelum realty claims; any actor's property must be a proper consequence of her own actions, including trade for access to another's property. (8) This quality also limits property to that which an actor understands of the consequences of his action. For example, an actor who first routinely picked fruit from an apple tree may claim a property in the fruit from the tree, and grant access to others to that fruit as any other property. But if this actor was ignorant of the fact that seeds he discarded could grow more trees and some discarded seeds did indeed start to grow, he then could have no property claim in the new orchard until he somehow purposefully acted upon it.

second, property must be viewed to the claimant as satisfying some future desire, or interest. An expected consequence to action is not property in itself, as one would not normally claim that footprints left in the woods are the property of the hiker. Of course if the hiker intends to track her own path later, to find her way either back out or back in on a later trip, the footprints become valued, and could be considered property. This second quality of property invites questions about the difficulties of externalities, where there is an effect of some actor's behavior on another actor. These externalities must be presented to their cause, and only after the actor is aware of such effects of their own action will these be considered their property. (9) After knowing that action leads to secondary consequences an actor can begin to value what course of action to take to control those consequences, creating property. (10)

The most recent examples suggest the third necessary quality of property, namely that the physical change to the world giving rise to the future value must allow the actor some element of control to the actor making a property claim. Explicitly, property must be viewed as controllable at least to the extent that the intended future value is preserved. The power to control greatly limits what can be considered property, but gives the link between technological power and varying property claims. (11) Usually manifesting as the near absolute right to exclude, the quality of controlling the future value of property may be as little as governing public use property to protect owner's intended benefit and limit costs. (12)

For property to have any meaning it …