This is the first in a series of posts on the Tenth Annual Felician Institute Conference on Ethics and Public Affairs. For the introduction to the series, read this.
The first of the sessions I attended (and chaired) was one on (private) property rights, featuring two papers–one an essentially Hegelian justification of private property rights by Blake Wilson (SUNY Binghamton), the other a Lacanian account of a dilemma about private property by Chris Ketcham (University of Houston, Downtown). I’m going to discuss Blake’s paper rather than Chris’s, in part because Chris’s paper was aporetic rather than thesis-driven, and also because the aporia in Chris’s paper arises from the idiosyncrasies of Lacan’s conception of our obligations to others, a topic I’m not qualified to discuss, having read very little Lacan.
Blake’s paper isn’t online per se, but here’s a precis of the project of which it’s a part, cut and pasted from his Academia site:
In my dissertation, I develop a theory of property that prioritizes privacy and the privacy-advancing aspects of private property. I argue that private property rights – best understood as an owner’s right to exclude combined with the nonowner’s duty not to interfere – can only be claimed if the property is capable of containing or expressing the owner’s privacy and personhood. By critically examining how various institutions regulate and constitute the right to private property, I explore whether owners owe special duties to nonowners in virtue of their ownership and how these duties are enforced through the use of eminent domain, economic regulation, or even criminalization. Like privacy rights in bodies and homes, I conclude that privacy rights in external property should also be constitutionally protected, but that because legitimate privacy claims in many locations (such as subsurface locations that contain natural resources) are extremely unlikely, successful private property claims over those areas are implausible as well.
I got a lot out of Blake’s paper, and happened to agree in a general way with the political or policy-level conclusions it reached (at least as far as they came up in the paper). In that respect, I saw myself as essentially sympathetic with the project. I count it as a virtue of the paper that Blake is a practicing attorney, and brings a lawyer’s sense of concreteness to the analysis. I also found the Hegelian approach he takes to provide a nice set of comparisons and contrasts to the Lockean-style view I myself would favor. I didn’t get much out of the Philosophy of Right the last time I read it, but Blake’s paper (among other things I’ve read since) convinces me that there’s more there than I managed to discover on a cursory reading.
I basically have five comments, starting from the most abstract, and moving to the most concrete.
(1) Privacy, ownership, and conceptual priority
The first is a foundational question, the sort of thing that a skeptic would ask about the project as a whole. Blake seems to assume that privacy is basic, and that ownership is to be analyzed or explained in terms of it, but one could (and some have) equally well have made the reverse claim: that ownership is basic, and that privacy is to be analyzed or explained in terms of it.
The meta-philosophical issue here is: given two complex normative concepts, C1 and C2, how do we establish which is foundational and which is superstructural—assuming that they have an asymmetric foundation-superstructure relationship in the first place? Of course, they might not have such a relationship. They might both be basic, or they might both be explainable by way of some other, more normatively or semantically basic concept.
The normative issue is: given that we can, in principle, explain ownership by way of privacy, and privacy by way of ownership, what is the theoretical advantage of doing things the first way? Blake seemed to be suggesting that it’s intuitively clear that privacy is more basic than ownership—I thought I heard him say that privacy is normatively irreducible—but I don’t share either intuition. If his argument is to go through, it seems to me that Blake needs a way of resolving this apparent stalemate.
(2) Do privacy interests explain all relevant examples of private ownership?
I asked this question in the session, but I wasn’t entirely clear on Blake’s response to it (unless he was simply saying that he didn’t have a ready answer in hand).
It seems to me that there are paradigmatic instances of private property claims that either have nothing to do with privacy, or are very tenuously related to it. Consider an example (the example I used in the session). Suppose that I own an orchard at some distance from my home, so that there is no sense in which the orchard is geographically in the vicinity of anything that might plausibly be regarded as my “private life.” Suppose that my basic motivation in owning this orchard is monetary: I want, within the limits of all other relevant ethical considerations, to use the orchard to make money. Suppose that the orchard abuts a hill from which its operations can be seen, heard, photographed, and videographed. Suppose that I have no objection whatsoever to its being seen, heard, photographed, or videographed in this way; I simply don’t want people trespassing on or stealing from my orchard. Finally, suppose that I’m particularly opposed to infringements on my property rights that interfere with my basic aim in owning the orchard—to make money.
It seems to me that I have a right to the orchard, but that granting that right, privacy considerations do little or nothing to explain why I have it. As I see it, Blake faces something of a dilemma here. Either he agrees that the orchard example is paradigmatic of ownership, or not. If so, it’s not clear how his account explains the right to own the orchard. If not, he’ll inevitably face a critic who insists that ownership of the orchard is a paradigmatic case of private ownership. Given Blake’s own reliance on paradigm cases, I don’t see that he has a non-question-begging way of rebutting the claim that the orchard case is a paradigm case of private ownership. But I also don’t see how he can explain ownership of the orchard via privacy interests.
(3) A question on subsurface rights (or: what would a Hegelian say about the Lockean provisos?)
I wasn’t entirely sure I followed what Blake said in the paper about rights to subsurface resources, but the orchard example might help to clarify that issue. Suppose, in the orchard example, that I claim a subsurface property right underneath the orchard that goes as far below the surface as is necessary to maximize the orchard’s productivity. Would Blake agree that I have that right?
This question is really a specific instance of a more general question I have about Blake’s thesis, namely, what does his view, or a Hegelian view, entail about Locke’s provisos on ownership, e.g., non-waste, the Lockean Proviso, etc.? Are there Hegelian equivalents of these provisos, or does the Hegelian account dispense with the need for them?
(4) The public/private asymmetry
I’ve always been struck by a certain oddity in discussions of the justification of private property rights. It seems to be a “given” that we need a worked-out justification for private property, but axiomatic that we don’t need one for public property. I don’t see why. Prima facie, both private and public property seem to be species of the same genus—property. As species of that genus, both seem to share the same distinctive feature: whatever the differences between them, both essentially involve some parties’ right to control a resource, and in doing so, to exclude others from using it. The differences between public and private property operate within the context of that similarity. Given that, you’d expect the justification of public and private property to involve a generic similarity. Yet on Blake’s view, that isn’t possible. Private property involves a right to exclude, but is justified by way of privacy interests; public property likewise involves a right to exclude, but can’t coherently be justified by way of privacy interests. Should the justification of private property be so radically different from the justification of public property?
There are two different claims here, yielding four possibilities.
(a) Generically similar norms have generically similar justifications.
(b) Public property and private property are species of a common genus.
Schematically, that gives us: (i) (a & b), (ii) (a & ~b), (iii) (~a & b), and (iv) (~a & ~b).
In other words:
(i) Generically similar norms have generically similar justifications; since public and private property are species of a common genus, they have a generically similar justification.
(ii) Generically similar norms have generically similar justifications, but public and private property are not species of a common genus, so they lack a generically similar justification.
(iii) Generically similar norms do not (necessarily) have generically similar justifications; public and private property are species of a common genus, but there is no reason to expect them to have a generically similar justification.
(iv) Generically similar norms do not have generically similar justifications; further, public and private property are not species of a common genus, so there’s no reason whatsoever to expect them to have generically similar (or in any way similar) justifications.
I won’t argue for it here, but I would endorse (4i), and I’m curious which option Blake (or anyone else) would endorse. Options (4ii)-(4iv) are consistent with his view, but obviously, are different propositions with different consequences.
(5) The scope of the project: Ka’adan as a test case
The scope of Blake’s project was somewhat unclear to me. To whom or for whom is he trying to justify the right of private property? Put another way, what kind of right is he trying to justify? Where does he see this right as applying?
There are at least three possibilities here. Is he trying….
(a) To provide a justification of private property applicable to American (or North American) politics, but not beyond that?
(b) To provide a justification of private property applicable to liberal democratic (or “Western” liberal democratic) regimes, but not beyond that?
Or is he trying
(c) To provide a justification of private property applicable to human beings qua human?
The Lockean ambition is to provide an account of (5c). It seems to me that the Hegelian ambition is merely to provide an account of (5b). But perhaps paradoxically, this lack of ambition exacts a certain normative and theoretical cost: it seems to imply (or has often seemed to imply) that instances of appropriation that are not paradigmatic within liberal democratic regimes don’t count for nearly as much as those that do. E.g., farmers count; nomads don’t. Civilized modes of living (and property use) count; uncivilized ones don’t. Eminent domain is justifiable for railroads, streets, highways, and airports, but not for buffalo hunting. Nature preserves matter; grazing land doesn’t. And so on.
To the extent that Blake’s project concerns (5b), I wonder whether he’d count Israel as a liberal democratic or Western liberal democratic regime. Unlike, say, Pakistan or Saudi Arabia, it’s widely (almost universally) considered one, and yet its property regime is frankly and unapologetically ethnocratic. (See also B’Tselem’s work on this, as well as the work of David Kretzmer, Idith Zertal and Akiva Eldar, and Maha Samman.) That means, in practice, that non-Jews do not have property rights that the State of Israel regards as worth respecting. It also means that when they defend what they take to be their property rights, the State of Israel regards their actions as aggression, and responds to it with overwhelming force.
For that reason it seems to me that anyone defending either (5b) or (5c) needs to have a worked-out analysis of the theory and practice of the landmark Israeli Supreme Court case Ka’adan vs. Israel Lands Administration (2000), including the enforcement history of the case since its decision. (The text of the ruling is available in RTF format toward the top-right of the linked page.) Let’s suppose that Israel is a Western-style liberal democracy. In that case, we need a crisp answer to the following question: is the enforcement outcome of Ka’adan a paradigmatic violation of a liberal conception of property rights, or is it a paradigmatic exemplification of such a conception that a liberal theory of property rights must accommodate?
Either answer is sobering. If the enforcement outcome of Ka’adan is a violation of liberalism, then it seems to follow that the State of Israel is committed to flouting the claims of liberalism. In that case, systematic enforcement of Ka’adan would seem to herald the undoing of Zionism and of the very idea of a Jewish State. But if the enforcement outcome of Ka’adan is an exemplification of liberal principles, there seems, from the perspective of its victims, a good reason to reject not just Zionism but liberalism. It’s not clear why anyone has reason to endorse a conception of “liberalism” that treats apparently innocuous claims to property as worthless and illegitimate.
I suppose it’s unreasonable to expect a doctoral dissertation on private property to be a disquisition on contemporary Israeli jurisprudence. But to the extent that Blake’s project has been enhanced by attention to Anglo-American jurisprudence, it seems to me that it could similarly be enhanced by taking a wider, international perspective on property.
Wow, I’m glad I kept this so “brief.”
Apropos both of his paper and my post, Blake Wilson sends along this very useful article on sub-surface property rights–John Sprankling, “Owning the Center of the Earth,” UCLA Law Review 55:979. Here’s the abstract:
Blake reminds me that the article discusses Western jurisprudence, so it’s not clear how relevant it is to, say, Israeli property law (or for that matter, Egyptian, Jordanian, Iraqi, Pakistani, or Indian law). For one indication of the stakes involved, watch this video, about a clash between the residents of the Palestinian neighborhood of Silwan in Jerusalem and the Israeli archaeologists excavating “The City of David” beneath their homes:
Irfan: thanks for the blog post and interest in my research. You’ve latched on to a few of the tougher questions that I’m grappling with, including the issue of the priority of privacy and the issue of universalizability. You are correct that I believe privacy (and the rights that protect it) is basic and exists (at least conceptually) prior to private property. It’s axiomatic that privacy is prior to private property, and part of my project (which can only be hinted at in the time frame of a conference presentation) attempts to determine why privacy justifies “super strong” property rights – rights which make certain kinds of ownership immune from, e.g., eminent domain, ‘police power’-type regulation, community rights over the property, etc. As you’ve sussed it out, I’m arguing that it’s the ‘injection’ of privacy – a core right – into property (which, on its own, is NOT a core right) that makes the case for private property. The privacy aspect transforms the right to (some) property into a fundamental right and leaves non-private property less protected.
Hegel’s somewhat ‘mystical’ justification of private property is worth revisiting. It trumps Locke’s rather naive and sketchy justifications (cf. Nozick’s dumping-tomato-juice-in-the-sea example and related counter arguments) primarily because Hegel tells why private property is important and not merely how to obtain it.
For Hegel, private property is necessary for 1) human freedom (free persons express their freedom through ownership and exchange), and 2) human dignity and sociability (persons ‘unite’ in their respectful recognition of one another as owners or potential owners of property). Hegelian property introduces a level of social cohesion and shared will which the Lockean picture of the atomistic individual owner ignores. For Locke, persons somehow possess, own, and trade things without any social or moral background. Hegel, on the other hand, tells us what property does – it gives us objective expressions of personality – and why that’s important: it’s how free persons interact with one another. Technically, Hegel says that property mediates our intersubjectivity. And that’s a good thing: we’re kind of stuck in our subjectivity and become persons when property allows to get unstuck by trading, exchanging, etc., with others. We learn the ‘rules’ that govern these deeply moral behaviors in families and societies peopled with individuals that respect each other, and, most importantly, respect each other’s things.
For Locke, I respect your stuff because you got there first (I agree that there’s a lot to be said for first appropriation rights, but that’s a different line of research); for Hegel, I respect your stuff because I respect you as a person and your stuff is an extension of your free will, and I’ve fortunately learned these behaviors in a property-owning society. So, in a nutshell: Locke starts with abstract persons who somehow already know how to own stuff and trade it, and builds society from there. Hegel, on the other hand, ends with those persons as the product of a free-ish society that recognizes the value of property as a medium for respect and moral conduct.
In terms of universalizability, my research – which is aligned with my research on the right against punishment (more rights!) – is oriented towards a constitutional property right that is predicated on the moral rights that protect property against incursions. So, the gist isn’t towards a moral (or universalizable) right only – although that’s certainly within the purview of the private property right I describe – but towards the kind of rights that contemporary states can and do (and ought to) recognize. The full version of this work looks at constitutional property regimes in not only the US but Canada, Germany, Zimbabwe, and South Africa (which is probably the most interesting use of the right of eminent domain that’s out there at the moment) in order to construct the right specifically within US jurisprudence. I think of this work as material for the legal brief that could support a fundamental property right (in, at minimum, the home, but also many other kinds of property) against eminent domain – this kind of research would be relevant should the SCOTUS decide to revisit its decision in Kelo v City of New London. That decision supported the use of eminent domain to take private property and give it to other private owners in order to promote a ‘public benefit.’ I think this was a bad decision, and one that violates property rights – particularly those of persons who are dispossessed of their homes pursuant to the state’s efforts to ‘revitalize’ communities.
So, to answer your question, the position I take is indeed geared towards property ownership in liberal democracies. I’ll take a look at the Israeli examples and respond to some of Irfan’s other questions, such as the application of privacy interests to subsurface things, soon…as soon as grading’s done, that is.
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