Academic journal article William and Mary Law Review

Three Reasons Why Even Good Property Rights Cause Moral Anxiety

Academic journal article William and Mary Law Review

Three Reasons Why Even Good Property Rights Cause Moral Anxiety

Article excerpt

Property is a vexing topic. Property rights play a central role in law and human life, but they are notoriously difficult both to define and to defend. Many ingenious arguments have been made over the years on behalf of private control of resources, but none seems fully satisfying as a justification for particular arrays of holdings or for the consequences of those holdings in hard cases.

My object in this Essay is to suggest several reasons why, entirely apart from the substantive justification for existing private property rights, property is, unavoidably, a morally uncomfortable subject. The problems I have in mind inhere in the relationship between law and morality generally, but are particularly likely to surface in the application of moral principles to property rights. As a consequence, even if private property rights are in fact morally justified, they are likely to generate moral unease.

To clarify the task, it may help to explain what the Essay is not about. I am not concerned with the validity or invalidity of any substantive theory of property rights. Nor am I concerned with the need to rank or reconcile a plurality of moral values bearing on property rights, although I shall comment on the relationship of property rights to multiple conceptions of justice. (1) Nor does my analysis turn on the potential conflict between individual self-interest and collective good, although gaps between self-interest and concern for others are sure to cause practical difficulties in designing and implementing a morally sound system of property rights. Instead, I shall identify a series of moral fault lines that make it difficult to live in moral peace with private property, even if the governing system of property rights is morally sound.


To think intelligently about the relationship between property and morality, one must first have a working definition of property. Intuitively, and traditionally, property means control over things. (2) Over the course of the twentieth century, however, the legal idea of property was diluted to the point of extinction, at least in academic circles. The conceptual devolution of property rights began in scholarly writing not specifically concerned with property. (3) Wesley Hohfeld recast legal rights as paired sets of jural relations between persons. (4) Ronald Coase characterized causation as a bilateral conflict between activities rather than the impact of one person's acts on the property or interests of another. (5) Picking up on these ideas, property theorists redefined property rights as legal relations between people in regard to resources. (6) Some went further, arguing that because legal relations between people in regard to resources play out in a wide variety of contexts, property rights ultimately amount to the outcomes of particular disputes over resources; property rights exist only as the products of case-by-case decision making by legal officials. (7) At this point, nothing distinguishes property rights from legal rights generally or gives them content in advance of the transactions or events that give rise to disputes. (8)

This modern conception of property rights is inadequate to support the benefits we expect from a system of private property. The social functions of property rights include encouraging owners to invest effort and capital in resource development, enabling owners to plan for the future, and avoiding prisoners' dilemmas and other coordination problems that lead to mismanagement of resources. (9) It is possible that some degree of legal uncertainty can facilitate private bargaining and encourage efficient behavior. (10) Yet if property rights are nothing but the outcomes of disputes over resources, there is no basis for investment, planning, and coordination, and no starting point for exchange or for judgments about harm.

Lately, however, some have moved away from the skeptical position and attempted to describe property rights in more promising ways. …

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