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

Article excerpt

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. …