Property and (Perhaps) Justice. A Review
Article of James W Harris, Property and
Justice and James E. Penner, The Idea of
Property in Law
James W. Harris, Property and Justice. Oxford: Clarendon Press, 1996.
Pp. xxvi, 387 [hardcover $154]. James E. Penner, The Idea of Property in Law.
Oxford: Clarendon Press, 1997. Pp. viii, 240 [hardcover $112].
Reviewed by David Lametti’
Discussions of property have typically revolved around two
large, axiomatic issues: fust, an inquiry into the nature or concept of
property and second, an inquiry into the justification (or an explana-
tion of its origins) of the institution of private property and the re-
lated discussion of the relationship between property and justice.
Two recent and major contributions in this area come from books by
James Harris, Property and Justice and James Penner, The Idea of
Propeny in Lm,. In discussing these axiomatic issues (or in Pen-
ner’s case, choosing not to discuss one of them and justifying the
approach), both authors advance important substantive claims. As
such, each text is a welcome addition to the current jurisprudential
discourse illuminating the understanding and justification of this
bedrock institution of Vestem society.
The scope of this review article is restricted to the second
axiomatic issue: the question of the justice and justification of pri-
vate propesty. It is the author’s view that both books understate the
idea that private property discourse necessarily includes elements of
duties, obligations and goals; what the author labels property’s
deon-telos. Using Harris and, to a lesser extent, Penner as foils, the
author tries to identify the underlying dominant rights-based as-
sumptions behind the modem discourse of justification. He also
highlights the way in which a stronger focus on deon-relos might
alter the balance ofreasons in this discourse.
Les discussions sur la propridtd ont gdndralement gmvitd au-
tour de deux questions axiomatiques importantes: d’abord, une
6tude de Ia nature on du concept de propridtd; ensuite, tune
tude des
justifications (on des explications de ses origines) de la propri6td
priv6e et du lien entre la propritd et la justice. Les livres Property
and Justice de James Harris et The Idea of Property in Law de Ja-
mes Penner sont deux contributions aussi importantes que r6entes
venant alimonter ce domaine. En discutant de ces questions axioma-
tiques (ou, dans le cas de Penner, en choisissant de ne pas aborder
ine des deux et en expliquant ce choix), les deux auteurs exposent
d’importantes assertions sur l’essence du droit. En tant que tels, los
deux ouvrages sont d’heureux ajouts au discours philosophique it-
luminant la compr.hension et Ia justification de cntre institution des
plus fondamentales de la socidtd occidentale.
La portl de cot article se limite A la seconde question axio-
matique, celle du carsctre juste et de la justification de la proprit
privrd. L’auteur est d’avis que los deux livres sous-estiment l’ide
sclon laquelle le discours sur la propridt6 priv~e inclut ncessaire-
ment des devoirs, des obligations et des buts ; ce que I’auteur
nomme deon-telos. En utilisant les ides de Harris et, dons une
moindre mesure, cellos de Penner, t’auteur tente d’identifier les
postulats domnants de la discussion juridique modeme de justifica-
tion. I1 souligne aussi le fait qu’une plus large attention portdo an
deon-relos modifie l’6quilibre des arguments nourrissant cette dis-
cussion.
. Assistant Professor, Faculty of Law and Institute of Comparative Law, McGill University. I would
like to thank Jim Harris for his instructive questions and comments, as well as an anonymous referee
for suggesting points where the general argument needed strengthening. I am equally grateful to vari-
ous colleagues who read and commented on previous drafts of this review article: Blaine Baker, John
E.C. Brierley, William Foster, Richard Janda, Nicholas Kasirer, Dennis Klinck, Roderick Macdonald
and David Stevens. I would also like to thank Carys Craig (LL.B., Edinburgh 1999), Kristine DiBacco
(LL.B., McGill, 1998) and Stephanie Taylor (B.C.L., LL.B., McGill, 1999), all of whom read drafts
and provided many insights, and Melissa Knock for her secretarial assistance.
McGill Law Journal 1998
Revue de droit de McGill
To be cited as: (1998) 43 McGill L.J. 663
Mode de rf&ence: (1998) 43 R.D. McGill 663
664
I.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
Introduction
A. The Deon-Telos of Private Property
B. The Pluralistic Justice and Justification of Property: Rights and Deon-Telos
II. The Need to Justify Private Property
A. Penner on Justice (Perhaps)
Identifying and characterizing the property norm
1.
2. Assuming justice and justification
B. Justification and Normativity: A Larger Claim
II. The Arguments for Private Property
A. Background Assumptions: The Normativity of Private Property
1. Minimal justice
2. Property-specific justification
B. The Arguments and Their Weight
1.
Individual interaction with the world
a. Self-ownership
b. Creation-without-wrong
c. First acquisition
d. Labour-desert
e. Personhood-constituting
f. Privacy
2. Freedom and autonomy
3.
a. Autonomy and ownership generally
b. Hegel
c. The scope of prima facie rights: mere property and transmission
d. Anti-property (freedom) arguments
Instrumental justifications
a. Direct and indirect justice costs
Incentive arguments
b.
c.
Independence
d. Societal goals?
4. Equality of resources and social convention
a. Equality
b. Social convention
C. The (Unbearable) ‘Weightiness” of Being Rights-Based
1. Harris’s conclusions
2. A rights-based argument
a. A master-vision
b. A rights-based vision
Conclusion: The Inadequacy of Rights-Based Justifications
1998]
D. LAMETTI – PROPERTY AND (PERHAPS) JUSTICE
665
I.
Introduction
Some of the most important questions that any polity can ask revolve around is-
sues of property. What is property? Or, more specifically, what is private propertyT
What are its characteristics – descriptive as well as normative? Can it be explained or
justified in whole or in part? How should property be used and distributed? Should it
be embodied in law, and if so, how? Treatises in political and legal philosophy that fo-
cus primarily, or in part, on property have addressed some or all of these questions to
varying degrees. Taken together, these writings comprise some of the core texts in the
canon of Western legal and political theory: Plato’s Republic; Aristotle’s Politics;
Locke’s Second Treatise; Rousseau’s Discourse on the Origins of Inequality; and
Hegel’s Philosophy of Right.2
More recently, there has been a spate of new works on property. They range from
in-depth reflections on the general theory of property by authors such as James 0.
Grunebaum, Jeremy Waldron, John Christman and Stephen Munzer, to more specific
monographs and collections of essays like those by Margaret Jane Radin and Carol
Rose,’ to a variety of shorter essays on more specific property topics, often written
from diverse perspectives These studies pick-up on the traditional questions and state
some now familiar conclusions.
In both lay and legal discourse, the general term “property” is used at once to refer to both the ob-
jects or subject-matter of property (i.e., property-as-thing or property-as-resource) as well as the ways
in which it can be held or the factual or juridical relationship persons have to the objects of property
(i.e., property-as-relationship). According to Harris, infra note 7 at 10, the use of the term “property”
for the objects of property dates back to the seventeenth century. The term is also used interchangea-
bly with “private property”. In what follows, I hope the context makes each usage of “property” clear,
where such is not the case, I shall try to specify. In general, though, I shall use “property” to mean
“private property” unless otherwise noted, and I shall try to maintain the distinction between property
and one institutional manifestation of a private-property entitlement, namely “ownership”.
2 For an overview of the canon, see R. Schlatter, Private Property: The History of an Idea (London:
Allen & Unwin, 1951).
‘ See J.O. Grunebaum, Private Ownership (New York: Routledge & Kegan Paul, 1985); J. Waldron,
The Right to Private Property (Oxford: Clarendon Press, 1988); J. Christman, The Myth of Property
(New York: Oxford University Press, 1994); S. Munzer, A Theory of Property (Cambridge: Cam-
bridge University Press, 1990). See also earlier works of importance: L.C. Becker, Property Rights:
Philosophic Foundations (London: Routledge & Kegan Paul, 1977); A. Ryan, Property and Political
Theory (Oxford: Blackwell, 1984).
‘ See M.J. Radin, Reinterpreting Property (Chicago: University of Chicago Press, 1993); C. Rose,
Property and Persuasion (Boulder Westview, 1996). See also the following collections of works by
different authors: J.R. Pennock & J.W. Chapman, eds., Property: NOMOS XXII (New York: New
York University Press, 1980) [hereinafter NOMOS XXI]; A. Brunder, ed., “Property” (1993) 6 Can. J.
L. & Juris. 183; E.F Paul, ED. Miller & J. Paul, eds., “Property Rights” (1994) 11 Social Phil. & Pol.
1.
Works from specific or non-traditional perspectives include, for example: B. Edgeworth, “Post-
Property?: A Postmodem Conception of Private Property” (1988) 11 Univ. N. South. Wales L.J. 87;
J.L. Schroeder, “Chix Nix Bundle-o-Stix: A Feminist Critique of the Disaggregation of Property”
(1994) 93 Mich. L. Rev. 239; H.-H. Hoppe, The Economics and Ethics of Private Property (Boston:
666
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[Vol. 43
Discussions of property have typically revolved around two large, axiomatic is-
sues: first, an inquiry into the nature or concept of property and second, an inquiry
into the justification (or an explanation of its origins) of the institution of private prop-
erty and the related discussion of the relationship between property and justice. The
first discussion poses the question “what is property?” and answers it by undertaking
a descriptive and analytic exposition of property’s basic conceptual characteristics and
features. Most expositions conclude that property –
using the term “property” to
identify a relationship one has with both material wealth and with others –
is a group
or “bundle” of rights that one might exercise over property, here using the term “prop-
erty” to signify the tangible or intangible item of material wealth which is the object
of the bundle of rights.’ The inquiry into the nature of private property may also help
to position the institution in a larger scheme of private law ordering, or argue against
such coherence. The second discussion asks if and how private property can be justi-
fied, and then analyses the (usually distributive) implications for the imperatives of
justice flowing therefrom. Justificatory discussions often take the form of an ex-
planatory narrative of the origins of private property. Such narratives may be historical
or hypothetical. Most works of this type point out the inadequacy of any one type of
justification for private property, such as the problems raised by a first acquisition the-
ory or a labour theory of property, and may even conclude that there is a plurality of
justifications or explanations for private property.
Two of the most recent and major contributions in property theory come from
writers based in the United Kingdom: James Harris’s Property and Justice’ and James
Penner’s The Idea of Property in Law.” Both of these monographs build upon the
strong property treatises emanating from the tradition of Oxford analytic jurispru-
dence and published at the Clarendon Press In discussing these axiomatic issues (or
in Penner’s case, choosing not to discuss one of them and justifying the approach),
both authors advance important substantive claims. As such, each text is a welcome
addition to the current jurisprudential discourse illuminating the understanding and
justification of this bedrock institution of Westem society.
Property and Justice is a comprehensive legal and philosophical analysis of the
concept of property in the Common Law. Harris attempts to shed jurisprudential light
Kluwer, 1993); M. Sagoff, The Economy of the Earth (Cambridge: Cambridge University Press,
1988). See also earlier works of importance: H. Demsetz, “Towards a Theory of Property Rights”
(1967) 57 Am. Econ. Rev. 347; G. Calabresi & A.D. Melamed, “Property Rules, Liability Rules, and
Inalienability: One View of the Cathedral” (1972) 85 Harv. L. Rev. 1089.
‘The exceptions are Schroeder, ibid., and, as we shall see, Penner, infra note 10. On the use of the
word “property” as both object and relationship, see Deon-Telos, infra note 12 at c. 2.
7 J.W. Harris, Property and Justice (Oxford: Clarendon Press, 1996). Harris is a Professor of Law at
Oxford and Fellow of Keble College.
SJ.E. Penner, The Idea of Property in Law (Oxford: Clarendon Press, 1997) [hereinafter The Idea].
Penner, originally Canadian, is a Lecturer in Law at the London School of Economics.
9 Most notably see Waldron, supra note 3, the base text by RH. Lawson & B. Rudden, The Law of
Property, 2d ed. (Oxford: Clarendon Press, 1980) and the seminal article by A.M. (Tony) Honord,
“Ownership” in A.G. Guest, ed., Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1961),
and more recently in A.M. Honor6, Making Law Bind: Essays Legal and Philosophical (Oxford:
Clarendon Press, 1987).
1998]
D. LAME7TI – PROPERTYAND (PERHAPS) JUSTICE
on both of the central preoccupations of property theorists. In addressing the descrip-
tive and normative characteristics of private property, Harris offers a new set of ana-
lytic and foundational categories; a property institution, he suggests, consists of both
the “ownership spectrum” and “trespassory rules”. On the question of the justification
of private property, Harris presents a powerful analysis of the various justificatory and
explanatory arguments for the existence of property institutions in modem Western
society. This work is remarkable from any perspective; it has a wide scope and pro-
found depth, and provides original ways of thinking about property and discussing its
implications for justice.
In The Idea of Property in Law, Penner ostensibly focuses on only the first line of
inquiry, the nature or concept of property. As a result, The Idea is formally narrower
in focus but substantively as wide in scope as Property and Justice, going to the very
heart of the way property is conceived in Western legal traditions. Consequently, a
great deal may be inferred about the justification of private property. In a previous
work published in the UCLA Law Review, Penner offers a unique perspective on the
nature of property, calling into question the long-held view that property consists of
“bundles of rights”.'” Instead, he applies the criterial notion of “family resemblances”,
the origins of which lie in the thought of Ludwig Wittgenstein, as a primary means of
understanding and describing the institution of private property. In The Idea, Penner
builds on this base, reiterating the argument that the focus of the law of property
should be on “things”, and describing the criterion of “separability” as a means of
identifying them. He follows the analytic jurisprudence of H.L.A. Hart and Joseph
Raz,” seeking to situate and explain the property relationship in its natural “environ-
ment” as part of a normative system of rules, rights and duties. In doing so, Penner
also offers new foundational tools, characterizing property relations in terms of a gen-
eral duty of non-interference, which he calls the “exclusion thesis”. Together with the
“separability thesis”, the exclusion thesis describes the central features of the institu-
tion of private property. These features help to vindicate the common-sense view that
property is what we all think it is: a right to a thing.
In trying to shed light on one or both of property discourse’s two central themes,
these works have undertaken monumental tasks –
tasks to be taken seriously by the
legal philosopher and property theorist. With respect to the first axiomatic issue, the
substance of each author’s argument for the most part succeeds in advancing our un-
derstanding of the descriptive and normative characteristics of this fundamental insti-
tution. Despite these merits, however, both Harris and Penner have understated a criti-
cal aspect of the concept of property: that of private property’s duties, responsibilities
” J. Penner, “The ‘Bundle of Rights’ Picture of Property” (1996) 43 U.C.L.A. L. Rev. 711 [herein-
after The Bundle Picture]. In my view, The Bundle Picture is a necessary piece of the larger idea in
The Idea, and one must read the former to understand the latter. If there is ever a second edition of
The Idea, one would hope for a complete integration of Penner’s two works.
” See generally H.L.A. Hart, The Concept ofLaw, 2d ed. (Oxford: Clarendon Press, 1994); J. Raz,
The Concept of a Legal System, 2d ed. (Oxford: Clarendon Press, 1980); J. Raz, Practical Reason and
Norms (London: Routledge & Kegan Paul, 1975).
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[Vol. 43
and obligations, whether they are free-standing or in service of societal goals and val-
ues. This is what I have called the “deon-telos” of private property.’2
The primary focus in this review article is not the first axiomatic property inquiry
described at the outset, the inquiry into the nature of property. What might be per-
ceived as the flaws in the descriptive projects of Penner and Harris will not be ad-
dressed as these issues have been dealt with elsewhere, as have their ties to the moral,
normative discourse in which the deon-telos of private property plays a necessary
part.” Rather, the scope of this review article is restricted to the second axiomatic is-
sue: the question of the justice and justification of private property. The omission of
deon-telos by Penner and Harris is most evident in the discussion (or deliberate non-
discussion) of justification; it is this aspect of the analysis in these two monographs
which this review article shall pass through the filter of deon-telos. An identification
of the underlying dominant rights-based assumptions behind the modem discourse of
justification will be discussed using Harris and, to a lesser extent, Penner as foils.
Furthermore, a stronger focus on deon-telos might alter the balance of reasons in this
discourse.
2 See D. Lametti, The Deon-Telos of Private Property (tentative title of D.Phil. thesis in progress,
Oxford University, on file with author) [hereinafter Deon-Telos].
” I discuss these issues in detail in “The Normativity of Private Property” [unpublished, on file with
author] [hereinafter “Normativity”] and in Deon-Telos, ibid. at c. 6. In that work, I am once again us-
ing Harris and Penner as foils, this time for the purpose of articulating a first argument on the source
of property’s normativity and its place in private law theory. To state my conclusions briefly, Harris’s
attempt at describing the institutional characteristics of private property has adeptly identified its
components. Yet the descriptive importance of the various component parts reflects certain normative
assumptions that, in essence, are rights-based. In my view, an expansion of the purview of these as-
sumptions, by recognizing explicitly that the source of property rules is ultimately moral, will better
describe the institution. Similarly, Penner’s attempt to find an internal and unique normativity to pri-
vate property is predicated on more strident rights-based assumptions than is Harris’s analysis, with
the same result. Both writers, however, have played a critical role in advancing the description of pri-
vate property and the normative discourse underlying it.
In addition, Harris has implicitly identified, in the structure of his monograph, what I believe is a
fundamental truth: there is a discourse justifying private property which underlies property. The dia-
logue of justification explains the shape of the property institution in any given society. As such, the
structure of Harris’s argument identifies the source of normativity of private-property rights and duties
as embedded in justificatory discourse. If correct, this identification may even help clarify what is
unique about property norms in contradistinction to the source of normativity in other areas of private
law ordering: contract, tort, and perhaps restitution. These other areas of private law may very well be
understandable in formal terms as having an immanent rationality and normativity based on a Kantian
form of equality and Aristotelian corrective justice, as argued by Ernest Weinrib in The Idea of Pri-
vate Law (Cambridge: Harvard University Press, 1995). Private property’s normativity, on the other
hand, finds its source in a necessary morality which is grounded in the fact that property rules are
fundamentally distributive. While a tort or contract paradigm can presuppose a distribution which can
then be “corrected” where transgressions occur, the property paradigm cannot make such distribu-
tional presuppositions, but in theory and practice must explain them. This necessity forces a society to
refer continually to the discourse justifying private property.
1998]
D. LAMETI – PROPERTYAND (PERHAPS) JUSTICE
A. The Deon-Telos of Private Property
As will be argued in Parts II and III, both Harris and Penner are, in essence,
“rights-based”” theorists who hold, consciously or unconsciously, that the ultimate
basis of private property is to be grounded and explicable in terms of rights. These
rights are anchored to a large extent in the notion of personal autonomy. That is, prop-
erty rights protect interests which ultimately foster the ability of individuals to make
meaningful choices in their lives.’5 While these rights-based aspects of private prop-
erty are, in my view, a necessary part of both the description of private property and
its ultimate justifications, they are insufficient on their own. A rights-based discourse
does not capture the totality of the property picture. In particular, it does not ade-
quately describe those aspects of the institution whose presence is not explainable or
understandable in terms of rights. More specifically, the idea of private property con-
“The
terms “right-based”, “duty-based” and “goals-based” come from R.M. Dworkin, Taking
Rights Seriously (Cambridge: Harvard University Press, 1977) at 171. Dworkin argues that goals,
rights and duties may all serve to justify political decisions. That is to say, each of the three justifica-
tions can serve as a complete basis for political action. Sometimes the different pairings of rights, du-
ties and goals are correlative; for example, a right to privacy and a duty to respect that right. However,
they need not be correlative; more importantly, it is often the case that the justifications are derived
from each other. Thus an initial justification for political action will ultimately lead to a further ex-
amination, at deeper levels, of its own justification, and so on. These more basic justifications can be
appeals to rights, goals or duties. In this way, Dworkin says, more basic goals can justify a complex
web of other goals, rights or duties, as can more basic rights or more basic duties. In the end, a politi-
cal theory can be traced to and based on an ultimate notion of right, duty or goal:
Political theories will differ from one another, therefore, not simply in the particular
goals, rights, and duties each sets out, but also in the way each connects the goals,
rights and duties it employs. In a well-weighted theory some consistent set of these,
internally ranked or weighted, will be taken as fundamental or ultimate within the the-
ory. It seems reasonable to suppose that any particular theory will give ultimate pride of
place to just one of these concepts; it will take some overriding goal, or some set of
fundamental rights, or some set of transcendent duties, as fundamental and show other
goals, rights and duties as subordinate and derivative (ibid.).
It is upon this “reasonable supposition” that Dworkin grounds his tentative initial classification. It
follows, then, that for a goal-based theory, some goal or set of goals is fundamental, like improving
the general welfare; for a duty-based theory, some duty or set of duties is fundamental, like those set
out in the Decalogue; and for a right-based theory, a right or set of rights is fundamental, like the right
of all persons to the greatest possible liberty. “Pure” or “nearly pure” examples of each theory are
given by Dworkin: utilitarianism is an example of a goal-based theory, Kant’s categorical imperative
is a duty-based theory, and Thomas Paine’s theory of revolution is a right-based theory.
Finally, both “rights-based” and “right-based” are used in the literature, often interchangeably.
Following what I believe is the spirit of Dworkin’s chosen example, I will use “right-based” in con-
nection to those rights-based (traditional deontological) theories which refer to a universal, formal
principle of Right, such as Kant’s. More generally, I will use “rights-based”, taken to mean a larger
category of such theories based on individual rights. What I call a “rights-based” analysis has been
explicitly applied to property arguments by Waldron, although his study employs “right-based”, supra
note 3 at 3f.
“5 The most notable writer in this tradition with respect to understanding both Harris and Penner is
Joseph Raz: see J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). Penner most
clearly follows Raz: see supra note 8 at 204; Harris does so less explicitly: see supra note 7 at 172-73.
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tains not only rights but also specific and general duties and obligations which cannot
be adequately explained in terms of correlative rights and duties between and among
individuals. These understated or neglected elements of property discourse are cap-
tured by the idea of deon-telos.
from the Greek, meaning “goal” or “end point” –
The deon-telos of private property includes what one might label the “deontology
of private property”. The deon of deon-telos –
from the Greek, meaning “duty” or
“that which binds” –
identifies specific duties and responsibilities contained in legal
property norms and their justification, emanating from a variety of sources, whether
universal imperatives or more specific types of moral and ethical duties. On the other
hand, the telos of deon-telos –
re-
fers to the inclusion of societal goals and values in the discourse of private property
and is, perhaps, the integral component of this definition. That is, I view as part of the
deon-telos of private property the societal goals which the institution of private prop-
erty is meant to serve. What one might ordinarily call the “teleology of private prop-
erty” is in part utilitarian: a particular goal may be the simple good administration of
society, or may be more substantively concerned with the fostering of certain individ-
ual and collective goods or virtues. In either case, however, the institution of private
property is placed at the service of larger purposes, in theory and in practice. There-
fore, a substantial part of the institution’s explanation or justification must be assessed
in moral functionalist terms. That is not to say that all duties, or even the most impor-
tant duty-based aspects of private property, find their origins in societal goals. Indeed,
some duty-based imperatives might influence the framing of societal goals and values
traditionally considered goal-based. The component parts of private property
grounded in either traditional deontology or traditional teleology are often interre-
lated. For this reason, the traditional labels of deontology and teleology are difficult to
apply, and necessitate a new term: deon-telos.” In short, the relationship between
16 As the neologism indicates, I ani trying to capture a multiplicity of justifications which do not fall
exclusively into one or the other of the two branches of the dichotomy of theories of right action pos-
tulated in the tradition of analytical philosophy: deontological and teleological. Briefly, traditional
deontological theories hold that there are certain acts which are wrong in and of themselves regardless
of any consequences that might result from those acts. Agents act rightly when they do not commit
those acts which are wrong, accepting that certain constraints or rules limit their actions. The determi-
nation of right and wrong, and the subsequent demarcation of constraints on action, might come from
common moral intuitions or religious imperatives, or from a more fundamental, universal moral prin-
ciple. This latter is usually Kant’s Categorical Imperative, or a derivation or recasting of it. See 1.
Kant, Foundations of the Metaphysics of Morals, trans. L.W. Beck (New York: MacMillan, 1985) at
3-94. For a neo-Kantian account in moral theory, see A. Donagan, The Theory of Morality (Chicago:
University of Chicago Press, 1977); in political theory, see J. Rawls, A Theory of Justice (Boston:
Harvard University Press, 1971). In contrast, traditional teleological theories do not consider actions
as intrinsically right or wrong, but rather require the assessment of actions in terms of their conse-
quences. Actions are right only insofar as they produce positive or more positive results, and, specifi-
cally, the advancement of certain values. This analysis of actions might be framed in terms of the
comparative assessment of values or the more regimented calculation of costs and benefits, aimed at
maximizing utility. Teleological theories are often termed “consequentialist”, particularly those
teleological theories that are “utilitarian”, i.e., aimed at the maximization of utility.
1998]
D. LAMETI – PROPERTYAND (PERHAPS) JUSTICE
and rights, too, of course –
goals and duties –
is a rich and complex one. So, in ad-
dition to traditional deontological rights and their correlative duties, other goals, du-
ties and responsibilities whose sources are both teleological and deontological serve at
once to help demarcate private property norms from other norms, and define the limits
on the exercise of property rights.
Those aspects of private property captured by the rubric of the deon-telos are an
intrinsic component of the concept of private property itself; any discussion of private
property, whether in theory or in practice, is incomplete without them. Rights-based
theories not only fail to capture this richness, they also lack the ability to discern a
larger coherence among all these aspects of the institution. Without these elements,
the explanatory force of any descriptive project is weakened. What is more, the rights
discourse itself, by characterizing private property only or primarily in terms of rights,
Strictly speaking, the traditional deontological/teleological divide is supposed to apply to theo-
ries of right action; the dichotomy is a subdivision of what political philosophers call “the Right” (see
P. Pettit, ‘”he Contribution of Analytical Philosophy” in R.E. Goodin & P Pettit, A Companion to
Contemporary Political Philosophy (Oxford: Blackwell, 1993) 7 at 30ff.). Others have taken the
schema further. John Rawls has quite famously applied this schema not as a subdivision of the Right,
but effectively as a synonym for another traditional dichotomy in ethics, that of “the Right” and “the
Good”. In this application, teleological theories place the Good ahead of the Right, while deontologi-
cal theories place the Right before the Good. A great deal of modem political and ethical discourse
has followed suit. Much of the debate between liberals and communitarians takes place on these
terms, the former advancing the Right over the Good, while the latter advance the Good over the
Right. Michael Sandel, for example, has adopted Rawls’s categories in his general critique of deon-
tological liberal theories of the right, and of Rawls’s theory in particular (see M.J. Sandel, Liberalism
and the Limits of Justice (Cambridge: Harvard University Press, 1982)).
In their monistic forms –
that is, where each approach appeals to a singular principle such as the
Kantian Categorical Imperative (for traditional deontological theories) or utility (for traditional teleo-
logical theories) –
both of these views attract debilitating criticism. In a sense, the extreme forms of
each view are mollified by the other; there are instances where right action results in disastrous con-
sequences or where the pursuit of consequences beneficial to the greater good require quite drastic re-
strictions of individual action or violations of individual rights. Thus, there is a strong intuitive basis
for arguing that both fail to capture sufficiently either moral action or ethics generally. There are some
aspects of traditional deontology in teleological theories and vice-versa. Put another way, there may
even be some types of the Good or the Right that are linked to each other. Also, there are some ethical
considerations which are genuinely different between both theories. A number of ethical theorists
have argued for a wider consideration of ethical inputs. See e.g., B. Williams, Ethics and the Limits of
Philosophy (Cambridge: Harvard University Press, 1985) at 15-18. Some have, in the neo-Aristotelian
tradition, called the alternative approach “virtue ethics”, focussing on concepts such as respect, sym-
pathy, loyalty and fidelity. See e.g., 0. O’Neill, Towards Justice and Virtue (Cambridge: Cambridge
University Press, 1996), and C. Taylor, The Sources of the Self (Cambridge: Harvard University Press,
1989). For my part, I take no position on these debates. With respect to the argument which follows, it
is fair to take as a given that such moral ground exists, even if one might argue about its contours.
“Deon-telos” is a placeholder for this space.
Theories that are commonly called “right-” or “rights-based” usually fall into the traditional
deontological category. When a right is a trump card held by an individual, it serves as a constraint on
action over and above all possible values that might be promoted in violating that right. What is more,
rights-based theories often represent the monistic type of deontological theory, having ultimate re-
course to a single universal principle, that of individual human rights.
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forces these other, ever-present deontological and teleological elements of this institu-
tion into the background.” The same is also true, I believe, of the arguments used to
justify private property: rights-based arguments in favour of private property do not
succeed in justifying the whole of the private property institution.
B. The Pluralistic Justice and Justification of Property: Rights and
Deon-Telos
As a result of the deon-telos manifested by the institution of private property, a
central question of property discourse must be whether, at the level of justification,
private property can be ultimately or adequately justified in terms of rights alone. I
have argued elsewhere that this is not possible.” To summarize, while these non-
rights-based elements of the institution of private property exist in practice, and while
various theoretical works allude to them or incorporate them, these duties and obliga-
tions are often treated as a random, less-than-coherent part of the institution in prac-
tice. Theoretically, they are treated as unconnected or even extrinsic to the institution.”
Yet they are ubiquitous in practice and, in theory, play an important and systematic
role in justifying private property and explaining its origins, its distribution and its us-
age. As a result, rights-based theories are inadequate to explain private property,
missing not only aspects of the institution that serve important societal values and
goals, or what one might call “goal-based” justifications, but also the aspects that one
might call “duty-based” justifications, requiring certain types of conduct with respect
to specific resources. These latter obligations are present whether they serve values in
society or whether they are grounded in more individualized theories of right action. It
is these non-rights-based justifications for private property (as well as their manifesta-
tion in legal practice) that I am trying to identify, bring to the fore, and group under
the label deon-telos.
” Some might argue that private property norms (and justifications) might still be articulated in
terms of rights, independent of whether the institution can best be understood as grounded primarily
in the substance and discourse of individual rights. For example, John Finnis attempts to articulate as-
pects of his conception of Natural Law in terms of rights in Natural Law and Natural Rights (Oxford:
Clarendon Press, 1981). Extreme care must be exercised in doing so, as the resort to the language of
rights will likely precondition or even distort one’s view of the explanation or justification: see gener-
ally V. Kerruish, Jurisprndence as Ideology (London: Routledge & Kegan Paul, 1991). One might
question whether Finnis is indeed successful in remaining true to the Natural Law tradition: see D.
Beyleveld & R. Brownsword, Law as Moral Judgement (Sheffield: Sheffield Academic Press, 1986).
For an illustration of the pitfalls of articulating a non-rights-based theory in terms of rights, see my
views of the discussion on Hegel undertaken by Waldron, supra note 3 in Deon-Telos, supra note 12
at c. 4.
“I make this argument formally in Deon-Telos, supra note 12 at c. 4, 5. Even rights-based writers
have pointed out the shortfalls of rights-based theories and arguments: see e.g., Waldron, supra note 3
at 3-5, 127-32.
” See e.g. Harris, supra note 7 at 33, who identifies these elements as part of the institution, admit-
ting they usually exist in virtually every private property institution, but still labels them as not con-
ceptually tied to the institution.
1998]
D. LAMETI – PROPERTY AND (PERHAPS) JUSTICE
The recent monographs by Harris and Penner help to illustrate my argument. The
fact of working within the rights-based paradigm causes both Harris and Penner to
miss or mis-characterize important aspects of the institution of private property. In
Part I of Property and Justice, Harris tries to describe the various components of pri-
vate property in neutral terms. In Part II, he gives an assessment of various arguments
justifying and dis-justifying private property. In The Idea (as well as in The Bundle
Picture), Penner attempts to describe the property institution and its inherent norma-
tivity. In each case, the omission of an understanding of property’s deon-telos has a
significant impact. Despite Harris’s attempt at neutral description, his underlying as-
sumptions about private property are omnipresent in his descriptive analysis. For ex-
ample, his classification of elements as intrinsic or extrinsic to the institution is in
large measure determined by the rights-based paradigm. As John Finnis has argued,
such descriptive judgments of importance and significance cannot be made neutrally.”0
Even in a descriptive project, the determination of which aspects of any given institu-
tion are more important or significant requires analytic decisions which cannot be
made independent of the observer’s own bias. For example, Harris evaluates certain
property institutions in Part I of Property and Justice, positing that some are more
central than others. The same is true of Part ]I, where the assessment of various justi-
fications and dis-justifications for private property is predicated on a minimal view of
justice, which as argued below, is, in essence, rights-based. Thus, even a work as in-
tellectually balanced as Harris’s monograph might have unwittingly illustrated the pit-
falls of working within the rights-based paradigm. Similarly, Penner’s attempt to
capture the essence of private property and an inherent normativity is flawed by the
assumption of a rights-based paradigm. This causes him to miss what in my view is
the ultimate source of normativity for private property: the discourse of justification
which at once incorporates and balances rights and deon-telos. Therefore, both Harris
and Penner need to ask explicitly why certain rules are the way they are in order to
show the purposes behind private property as the method chosen by a society to allo-
cate and regulate social wealth and the obligations attached to that social wealth. This
will require them to build an idea of deon-telos into their pillars or base criteria of pri-
vate property. As this idea is ultimately the foundation for their pillars, its inclusion
cannot but strengthen their analysis and insights.
In Property and Justice in particular, these understated elements of private prop-
erty discourse –
the role they play in justifying, explaining, and understanding the
implications of private property systems –
could be explicitly added without under-
mining the fundamental insights Harris offers. The justification for private property
will ultimately be found in a mix of rights-based, duty-based and goal-based argu-
ments. Phrased another way, it will be found in a mixture of reasons aimed at pro-
moting individual rights and the duties and goals of both communities and individu-
als. Rights-based arguments will continue to play a role – perhaps even the lead role
in this ongoing drama. As Harris does posit a plurality of justifications, and even
–
implicitly allows some scope for deon-telos, the suggested correctives go mainly to
20See supra note 17 at 11-18.
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the weighing and reweighing of certain justificatory arguments. As such, this review
article represents a tune-up more than an overhaul.
The rights-based assumptions underlying The Idea of Property in Law are
stronger and thus more problematic. In my view, Penner needs first to engage in the
justificatory discourse and, once engaged, take the concerns of property’s deontology
and teleology into account. As it stands, Penner does not even take the first step, ar-
guing instead that such justification is not necessary. The result is that he is able to
reach only a partial and inadequate understanding of the role of private property in so-
cial and legal ordering. In the end, though, my sense is that both writers are too rights-
based to be comfortable taking property’s deon-telos more seriously in the structure
of their work.
II. The Need to Justify Private Property
Justifying (or dis-justifying) the institution of private property has become some-
thing of a cottage industry. Despite the number of works –
including those recent
monographs cited at the outset of this review article, and in particular the important
contributions of Lawrence Becker, Jeremy Waldron, Stephen Munzer and John
Christman’ – we have still not reached the end of this industry’s economic cycle,
and probably never will. There are a number of reasons for this.
If we begin from the assumption that all human beings should be treated as pre-
sumptively equal, it follows that human beings should have some opportunity to share
in the world’s physical resources or social wealth.” However, those same resources
are limited, either by nature or by design;’ moreover those that do exist are unevenly
distributed –
some might say perpetually so. There is a long-standing acknowledg-
ment of the powers that are attached to private property, in particular, powers ac-
corded to individuals as against both the community and other individuals. Long be-
fore left-wing sceptics railed against the vicissitudes of private property, mainstream
political, religious and social writers had identified the relationship between property
and power. ‘ It is fair to say that the type of property rights historically accorded to in-
dividuals in a given society bears directly on the existence and shape of that society’s
political institutions. According to Harris:
21 See Becker, supra note 3; Waldron, supra note 3; Munzer, supra note 3; Christman, supra note 3.
22 As Harris points out, see infra note 55 and accompanying text.
‘ What Harris calls “ideational goods”, the subject-matter of intellectual property, have a set of
quantitative limitations or scarcity which is artificially created and enforced by property rules (supra
note 7 at 43).
24 This is clear in some of the oldest debates on the origins and justification of property: those be-
tween the Avignon popes and Dominican friars on the one hand, and the Holy Roman Emperor and
Franciscan friars, on the other. All sides in the discourse knew that along with temporal possessions
went temporal power. For a colourful introduction to these views, see the various passages in Um-
berto Eco’s novel The Name of The Rose, trans. W. Weaver (New York: Warner Books, 1983) at
337ff., where the substance of the debate over the poverty of Christ and the Church, as well as some
of its principal interlocutors – Pope John XXII, Marsilius of Padua, William of Ockham –
are de-
scribed and identified.
19981
D. LAMETI’I – PROPERTY AND (PERHAPS) JUSTICE
Private property is controversial for the same reason that it is commonly prized.
It emphasizes the individuality of the property-holder. A property institution at
least confers some private domain over some scarce things, so that the sepa-
rateness of persons is made evident in the face of collective decision-making.
But that domain necessarily confers some power over others and hence is dis-
tributionally problematic.’
There are alternative schemes for the distribution and control of social wealth:
common property and state property, for example. These alternatives need not be un-
sophisticated and restricted to “primitive” societies, as Harris points out. For example,
one might combine licensing schemes and temporary rights akin to ownership rights
for limited periods of time, all under the auspices of a state property system. Or one
might hold some types of goods in common, with other resources being subject to a
different scheme of distribution and control. As a result, unless there is a natural right
to private property, it remains but one option for the social ordering of resources.
Consequently, we need to articulate why private property is the best system to choose
from among the alternatives.
It would seem, then, that this distributive aspect of private property requires the
institution to be continually justified and rejustified in light of the idea of natural
equality, the recognition of private property’s relationship to power, and the presence
of alternative structures.” Harris, in Part II of Property and Justice entitled “Is Prop-
erty Just?”, addresses these questions as they pertain both to the existence and form of
private property. He first posits three “minimal” assumptions about justice as a basis
for society, and then analyzes the property institution. In this context, Harris identifies
and assesses the persuasiveness of the various traditional arguments for private prop-
erty.
The Idea is less concerned with the issue of justification. Contrary to other writers
notably Waldron, Munzer and, presumably, Harris’
who address distributive issues –
Penner does not believe anything useful will come from this discussion. Penner’s
–
claim is that the study of the normativity of private property can be undertaken with-
out recourse to any external justificatory argument. Rather, a normativity which is in-
ternal to the institution can be identified, and property rules can be framed and under-
stood in light of this normativity.
Supra note 7 at 165.
26Indeed, Waldron, supra note 3 at 51-52, goes so far as to categorize private property as an “essen-
tially contested concept.” According to philosopher W.B. Gallie, a concept is “essentially contested”
when the correct usage of the concept necessarily attracts a debate amongst users of that concept
about the correct usage of the concept itself: see Waldron, supra note 3 at 51, n. 51, 52, citing W.B.
Gallie, “Essentially Contested Concepts” Proceedings of the Aristotelian Society 1955-1956, vol. 56
(London: Harrison & Sons, 1956) at 167. For an argument claiming that property is generally justified
according to societal goals (especially those of the dominant class), and that these goals will change
over time, see C.B. MacPherson, “The Meaning of Property” in C.B. MacPherson, ed., Property:
Mainstream and Critical Positions (Toronto: University of Toronto Press, 1978) at 1-2, 11-13.
27 Waldron and Munzer are specifically mentioned by Penner at various points. Property and Jus-
tice, Harris’s most recent work, is not cited by Penner, but presumably he would include Harris
among those writers who are characterized as unfruitfully looking at distributive issues.
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Choosing between these two very different views on justice and justification, I
believe one should prefer Harris’s position. Penner’s analysis, it seems to me, makes
some critical assumptions about both the justification and paradigmatic characteristics
of private property, assumptions which are by no means uncontroversial. These as-
sumptions are based –
notwithstanding a characterization of property’s form in terms
of a duty in rein –
on a rights-based view of property, heavily grounded in assump-
tions of individual autonomy. Given my belief that private property, in both practice
and theory, is based on more than rights alone, I remain unpersuaded. Penner’s argu-
ment is impoverished by the overt omission of deon-telos. Indeed, from a close read-
ing, one might still argue that implicit aspects of Penner’s own analysis indicate that
property is indeed predicated upon a justificatory discourse –
a discourse which
does, in fact, include distributive issues.
A. Penner on Justice (Perhaps)
Early on in The Idea, Penner claims that one need not engage in an external dis-
course justifying private property; rather, the important question for him is why we
treat some things as having value and others as not.’ According to Penner, the norma-
tive structure of private property, based on the interest protected by a property norm as
well as the rule-following attitude of those within the normative system, provides an
internally-generated justification for the institution. Here Penner is attempting to un-
derstand property norms by reference to the “Interest Theory” developed by Joseph
Raz.’ According to Penner, attempting to understand and characterize the interest
served by property rules will tell us a great deal about the structure and the normative
force of property.
28 See supra note 8 at 5.
The “Interest Theory” is one of a number of attempts to articulate the nature of what is protected
by the concept of a right, without necessarily deciding on the specific content of often competing
theories of rights. For example, some have argued that a right exists when one has some measure of
control over the duty in question: see H.L.A. Hart, “Choice Theory” (H.L.A. Hart, “Are There Any
Natural Rights?” in J. Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984) at
77ff.). Others have recast this basic idea by arguing that a right exists when one is the beneficiary of
another’s duty: see the “Benefit Theory” (D. Lyons, “Rights, Claimants and Beneficiaries” (1969) 6
Am. Phil. Q. 173 at 173-76).
The Interest Theory begins by placing emphasis on the purpose of rules which confer rights.
This detaches rights from duties to some extent, laying the groundwork for or providing the reasons
behind the imposition of a duty (see N. MacCormick, “Rights in Legislation” in P.M.S. Hacker & J.
Raz, eds., Law Morality, and Society (Oxford: Oxford University Press, 1977) 189 at 192). Raz
frames this idea in terms of its role in practical reasoning:
To say that a person has a right is to say that an interest of his is sufficient ground for
holding another to be subject to a duty, i.e., a duty to take some action which will serve
that interest, or a duty the very existence of which serves such an interest. One justifies
a statement that a person has a right by pointing to an interest of his and to reasons why
it is to be taken seriously (Raz, supra note 15 at 5).
The Interest Theory, as applied to property discourse, prompts one to look at the sufficiency of the
moral weight of interests protected by property rights or norms.
1998]
D. LAMETTI – PROPERTY AND (PERHAPS) JUSTICE
1. Identifying and characterizing the property norm
Penner’s characterization of property norms is of great interest and highly origi-
nal. Recall that Wesley Newcomb Hohfeld’s seminal analysis earlier in this century of
the general characteristics and relationship of rights, powers and duties cast all juridi-
cal relations as relations between and among persons: ‘A right in rem is not a right
‘against a thing’. … All proceedings, like all rights, are really against persons.
Whether they are proceedings or rights in rem depends on the number of persons af-
fected” On this view, a property right in an object is actually a multitude of similar
rights held against every individual in the world. Hohfeld’s analysis has become the
standard point of departure for property theory. But this admittedly legal view does
not represent how lay persons deal with their property and how they view the property
of other persons. When Smith sells his house to Jones, other persons do not perceive
any change in the state of their relationships to either Smith or Jones; all still have a
duty not to trespass in the house. All persons must respect the property institution,
framed in terms of a duty to the house. The relationship, on the lay view, is indeed
with an object of property. Building on this argument, Penner claims that it is more
accurate to categorize certain norms as “norms in rem”:
To understand rights in rem we must not only discard Hohfeld’s dogma that
rights are always relations between two persons, but also the idea that a right in
rem is a simple relation between one person and a set of indefinitely many oth-
ers.
The point, however, is that to conceive of a right in rem as a single relation
flowing to some vast set of duty-owers, as Honord and [Kenneth] Campbell do,
is to hold a quasi-Hohfeldian view of rights in rem that makes sense of the right
only at the expense of treating the duty-ower as the holder of millions of duties,
as many duties as there are property-holders and pieces of property. This is no
improvement on Hohfeld. But if we pay attention to the fact that rights and du-
ties in rein do not refer to persons, not in the sense that property is not owned
by persons, but in the sense that nothing to do with any particular individual’s
personality is involved in the normative guidance they offer, we may get
somewhere.”1
Penner’s point is that the in rem – in personam distinction applies to all categories of
norms and is the basis for our interactions with things. This analysis of norms in rem
is opposed to the Hohfeldian view and builds on the anti-bundles picture. This critical
analysis is predicated on “thingness”; a norm in rem requires a relationship to a thing.
That is, the relationship is essentially impersonal, focused as it is on an object. He
states:
‘Things”, then, whether physical things or states of affairs such as bodily secu-
rity, mediate between rights in rein and duties in rem, blocking any content
W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, W.W. Cook,
ed. (New Haven: Yale University Press, 1919) at 74-75.
“‘ The Idea, supra note 8 at 25-26 [emphasis in original]. See also The Bundle Picture, supra note
10 at 720ff.
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which has to do with the specific individuality of particular persons from en-
tering the fight-duty relation. How then, do rights in rem correlate with duties
in rein?
A duty in rem is a duty not to interfere with the property of others, or some
state to which all others are equally entitled. Thus a person is a holder of a right
in rem when he benefits from that general duty. The holder of a right in rein
benefits from the existence of an exclusionary reason, but one which does not
apply to him alone. Note that in some sense the correlativity here is not sym-
metrical. The duty-ower’s duty applies to more cases than that of the individual
right-holder. That is not a failing, I hasten to add. Rather it makes sense given
the way that the reasons work. 2
The critical insight is the idea that norms may apply in a special, impersonal way
through objects to other persons. The correlativity between persons is a mediated re-
lationship and can bring with it special types of rights and duties. As a result, rights
and duties need not be correlative. The characteristic duty of the private property rela-
tionship, according to Penner, is one of non-interference with the objects of property.
This duty does not entail a corresponding right, but is wider. The identification of this
asymmetry might very well stand as Penner’s major contribution to property dis-
course.
What, then, is the fundamental interest underlying property norms? According to
Penner, this interest is grounded in the use’of objects of property (identified using the
separability thesis) and the exclusion of other persons in the use of the same objects.
Private property, therefore, is predicated on the interest in the exclusive use of the ob-
jects of property. Property norms protect this interest by their framing in negative
terms by prohibiting others from interfering with one’s own use. Penner calls this
characterization the “exclusion thesis”, and incorporates it into his definition of pri-
vate property:
[Property is the right to exclusive use, which is] the right to determine the use
or disposition of a separable thing (i.e. a thing whose contingent association
with any particular person is essentially impersonal and so imports nothing of
normative consequence), in so far as that can be achieved or aided by others
from it, and includes the tights to abandon it, to share it, to license it to others
excluding themselves (either exclusively or not), and to give it to others in its
entirety.3
3 2Supra note 8 at 29. The idea of “exigeability” fills in the gaps left by the connecting of asymmet-
rical rights and duties over things to people, as well as the procedural vindication of norms in rein
against individual persons, thus correcting an apparent imbalance:
Exigeability explains that while rights and powers in rein bind the world, and correlate
to duties in rem which relate to property in general, not to particular pieces of property,
nevertheless when there is a violation of a right in rem it is an individual that does it,
and so remedial norms like claims to compensation will be personal, i.e., in personain
(ibid at 31).
Penner takes the idea from P.B.H. Birks, An Introduction to the Law of Restitution (Oxford: Claren-
don Press, 1985) at 49-50.
3 Supra note 8 at 152.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
This interest in use is the interest protected by property rules, according to Penner.
Following the normative structure assembled by Raz, the norm protects the interest in
use through exclusion. And from Penner’s own characterization of norms in rem gen-
erally, the in rem rights to property use are individuated –
characteristically identified
and framed in terms of a duty in rem to exclude oneself from the property of oth-
–
ers. Here we see Penner’s recasting of property duties as the relationship we all have
to things, or more accurately through things to others (and not a relationship to others
with respect to things). This is the characteristic structure of a property norm, and
looks a great deal like Harris’s idea of “trespassory rules”: rules which protect prop-
erty powers and rights.
2. Assuming justice and justification
I have discussed these components of Penner’s analysis elsewhere.’ What is clear
is that he has tried to characterize and identify the internal normativity of property in
terms of duties in rem not to interfere with the property of others. Penner goes further,
however, and claims that the above definition of property does not touch on distribu-
tive issues, and does not need to deal with the legitimacy of property rights. Yet what
obvious assumptions about the private property institution is Penner making through-
out his argument?
First, Penner assumes the justice of the institution of private property from the
outset. In the concluding chapter of The Idea, there is a discussion on issues of dis-
tributive justice and needs, leading to this passage:
The general point is that concerns about the distribution of property, in which
an essential minimum or a constitutive kind are to be given some kind of es-
tablished basis in the idea of property itself, are generally completely swamped
by broader considerations of a person’s well-being. … In these pages I have
tried to develop a concept of property which, tied to the legal system as it is, is
unable to be so promiscuous in its ramblings. … If [political philosopher Alan]
Ryan is right, as I think he is, to argue that the project of political morality will
not be advanced by addressing every question in terms of the scope of owner-
ship, then it will also not be advanced by presuming that the justice of any par-
ticular distribution of property rights is a major, if not the most important,
problem of economic justice. The legitimacy of property rights per se strikes
me as well nigh indisputable, for the practice of property protects a liberty, i.e.
exclusively to determine the use of things, that has proved marvellously pro-
ductive in contributing to the good life of many. Determining the justice of any
distribution of property, on the other hand, should draw our attention to those
distributional mechanisms themselves, such as gifts and contracts and com-
mands, all of which distribute a much broader set of goods than property
rights.’
This quotation, and specifically the emphasized text, is stunning. On its face, it
betrays a rights-based justification of private property that is posited as indisputable.
3, See “Normativity”, supra note 13 and Deon-Telos, supra note 12 at c. 2, 6.
33Supra note 8 at 206-07 [emphasis added].
680
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In this passage, Penner advances a view that property is self-evidently justified for
utilitarian and libertarian reasons; property is justified because it preserves an institu-
tion that has done humankind a great deal of good, and protects a human liberty to
exercise powers over resources. This claim is not even relatively uncontroversial.
First, private property’s legitimacy is not “well-nigh indisputable”; other conceptions
of property, such as common property or state property, might also fulfill individual
and societal needs in pursuit of the good life (though they will strike balances be-
tween powers and obligations, as well as between the individual and the community,
differently).
Second, given his characterization of property rights (“the right to exclusively
determine the use of things”), Penner even appears to assume that, within the institu-
tion of private property, the paradigm of absolute ownership is indisputable. Absolute
ownership, in practice, is virtually impossible to achieve, as any lawyer will attest.
Any basic text on property, not to mention a congeries of regulations and restrictions
at a variety of levels, is filled with exceptions to the idea that ownership is anywhere
near absolute in practice. At what point do the exceptions undermine the rule? Indeed,
some of these restrictions, in my view, go to the very core of the private property in-
stitution, militating against the idea of absolute ownership. The Civil Code of Quebec,
for example, recognizes such limitations in its definition of private property. Common
Law rules perform a similar function. In theory, too, the idea of absolute ownership is
at least disputable, as Christman and others have set out to show.”
As Harris points out, it is the distribution of control over scarce resources and
powers to some individuals and not others that makes private property controversial.
So the questions remain: how are these exclusive powers distributed; according to
what grounds or criteria; and once distributed, why should these rights be protected
by property rules and other norms? It is indeed true that determining the justice of any
distribution will lead us farther afield than the scope of traditional property law and
into an inquiry conceming the nature of societal goods, but that challenge is not a suf-
ficient reason to exclude such discussions from the province of property law.
More profoundly, an in-depth examination of the substance of and assumptions in
Penner’s arguments points out that one does need to account for property’s deon-telos
in an attempt to discem the normativity of private property. Penner’s claim that one
must look at larger issues of social ordering is correct; where he falls short is in the
claim that such issues are separate from the essence of property. For example, the im-
portant question identified by Penner at the outset of The Idea, about why we treat
some things as the object of property and others as outside the scope of property law,
is a distributive issue, as Penner admits. However the solution is not merely defini-
tional. As is implied by Penner’s analysis of the criterion of separability and various
discussions of scarcity, the determination of what resources will be regarded as ob-
jects of property is evolving and must take into account the needs of individuals and
the community, in addition to the values the community is trying to promote and pro-
3 See generally Christman, supra note 3. I have made a similar argument in Deon-Telos, supra note
12 at c. 3.
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D. LAMETI – PROPERTY AND (PERHAPS) JUSTICE
tect. This is a distributive issue, and is determined through a resort to justificatory dis-
course, as well as through a resort to property’s deon-telos.
Penner’s discussion of needs, undertaken in the pages leading up to the passage
cited above, is another example of this same point. According to Penner, once society
is constituted in some way, the Lockean proviso of “enough and as good”” is out of
place as a basis for duties to the less fortunate. Rather, such issues will be dealt with
by the other attachments –
that one necessarily has in society.
Penner states:
familial, social –
Such attachments situate us within a framework of personal relationships, and
it is therefore a nonsense to organize a theory about what one person may de-
mand to meet his essential needs which does not explicate the nature and con-
sequence of these various attachments.”
This is undoubtedly true, but it does not prove Penner’s point. In fact, I would submit
that it proves the opposite, as the stipulation perforce applies to the whole discussion
of the institution of private property. It might be true that needs cannot be the only fo-
cus of inquiry in the area of just distributions, or that the distribution of property per
se will not make people well off, or that determining the proper minimum basket of
tangible and intangible goods which anyone might have is difficult and contingent. 9 It
is undeniable, however, that property does contribute to one’s sense of well-being and
that the needs which can be fulfilled by resources are an important consideration in
the discourse of justification.’ One has to ask what individual and societal functions
property fulfils. Penner confuses the issue of justice and justification with some idea
of a “justifiable minimum” distribution. Need is but one factor to be assessed in the
creation and maintenance of a just property system, and needs are necessarily to be
considered as part of the richer determination Penner seems to advocate. Neverthe-
less, Penner appears to have posited the relationship the wrong way around:
[The distribution of property per se does not make a person well off.] This is
not in any way to deny that there is a rational, human interest in exclusively
determining the use of things. But it is to deny that our understanding of that
gives us a ground for determining the extent and the character of need.”
“The proviso states that where one person appropriates to himself from the common, he must leave
“enough and as good … in common for others”: J. Locke, Second Treatise in Two Treatises of Gov-
enmnent, 2d ed. by P Laslett (Cambridge: Cambridge University Press, 1967) at 288, para. 27.
” Supra note 8 at 204. This statement is based on Penner’s use of Raz’s Interest Theory: “we re-
member that a right is not framed purely in terms of one’s interests, but in terms of the relationships
with others which would justify imposing a duty on them to serve or protect those interests.” (ibid. at
n. 4).
” See Munzer, supra note 3 at 309, perhaps inadvertently, had made this latter attempt at defining a
minimum basket of property. Penner finds this list “strange”: see supra note 8 at 205.
, See J. Waldron, “Property, Justification and Need” (1993) 6 Can. J. of L. and Juris. 185 for an ar-
gument that any justification for private property must take needs into account. See also Harris, supra
note 7 at 281ff.
“l Supra note 8 at 204.
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The “rational, human” interest in property does not determine the character and extent
of need; the fact of need determines the character and extent of the rational, human
interest in property. Need takes its place alongside the other substantive interests pro-
tected by property institutions; in Harris’s terms, individually-derived interests, pro-
tection of freedom and autonomy, and instrumental merits.” While need may be an
“irredeemably dreary and short-sighted focus:
it does help us to understand the
claims, interests and duties we have to others with regard to social wealth.
Finally, Penner ignores the allocative powers the property owner has over others,
powers which affect their well-being. As such, the contours of the property institution
–
its distribution, the objects to which it applies, the powers accorded to title-holders
and the duties we impose on them –
cannot be discussed in an internal, normative
vacuum.
In short, Penner must talk about justification; and in doing so, he must also con-
sider basic deontological and teleological imperatives which comprise part of the dis-
course of justification and part of the very core of the concept of property. Penner’s
exclusion of them can no doubt be traced to an assumption about the relation of law to
morality, buttressed by the usual positivist mantra that there is no necessary link be-
tween the two. But even if this claim might be true for other areas of private law, in
my view, rights and morality cannot be separated when discussing property issues be-
cause of what is at stake: the basic means of a person’s physical survival, social exis-
tence, the ability to develop, and the power relationships of the society in which this
person is found. These issues must identify a part of the substantive interests protected
by property rules.” The idea of property cannot be separated from these larger moral
issues; the interests underlying one’s rights and duties are based on these very values.’
Indeed, some of Penner’s own conclusions require an understanding of property’s
deon-telos. First, an understanding of the full import of the social role of property,
partly identified by Penner, requires an examination of the very issues his analysis
wishes to exclude. Penner draws the analogy of property to a gate, instead of a wall.”
Once the gate is opened to reveal property’s social function in its true light, that gate
can not be easily shut! Second, ironically, Penner has also unconsciously advanced
the project of identifying and recognizing property’s deon-telos. His emphasis on
2 Seesupra note 7 at 168.
4′ Penner, supra note 8 at 204.
” Penner’s particular articulation of the Separation Thesis takes the form of the Interest Theory, and
as such strives for a high degree of generality. But even if the interest-based view of rights might be
separable from moral claims in certain (rare, in my view) instances in other areas of private law, it
seems that this cleavage is not as persuasive for private property, which must address critical moral is-
sues within its normative structure. See “Normativity”, supra note 13 and Deon-Telos, supra note 12
at c. 6.
“, Note that Harris’s view of the Interest Theory does take these issues into account: see supra note
7 at 170-73. 1 would submit that this reading is closer to the meaning of interest that Raz intended: see
supra note 29. See also Waldron, supra note 3 at 81-87.
46 See supra note 8 at 74. The “gate” permits the owner to make social use of the property, “allow-
ing some to enter.”
1998]
D. LAMETTI – PROPERTY AND (PERHAPS) JUSTICE
“thingness” and the identification of the important asymmetry of the property institu-
tion facilitates this discussion by giving the justificatory arguments of property rules a
unique focus. This new focus allows one to account for issues of distribution and in-
stitutional design not caught by the web of Hohfeldian rights and correlative duties. In
questioning the Hohfeldian schema, by looking at the objects of property and the
asymmetrical rights and duties flowing through these objects in a mediating role be-
tween individuals, Penner advances the idea of an in rem norm generally, and an in
rem duty in particular. That such duties might attach to objects of property raises the
possibility that certain of those objects might impose intrinsic duties on the person
entitled to use or own them, or that some specific or unique object might be the sub-
ject of an intrinsic teleological purpose in a particular society. Thus, some role for
deon-telos is much more easily posited on Penner’s understanding of the property re-
lationship than on the traditional schema of correlative rights and duties. In short,
Penner’s analysis bolsters a taxonomy of elements like Honor6’s which includes non-
Hohfeldian incidents, such as the liability to seizure for debt. 7 It also allows for
unique property justifications and unique legal architecture, distinct from those found
in other areas of private law.”
For these reasons Penner’s claim that property’s normativity can be discussed
without some resort to justificatory discourse is not convincing. External justifications
are necessary to explain property rules and their normative weight. The moral and po-
litical justice reasons behind the interests protected by the institution of private prop-
erty need to be articulated and defended. Implicitly, Penner assumes a position based
on one (controversial) view of the very justificatory claims he tries to avoid making
directly. He cannot simply assume the veracity of a claim as controversial as the one
he is proposing: that the legitimacy of property rights are indisputable because prop-
erty norms protect a liberty to exclusively determine the use of things. Even if this lib-
erty “has proved marvellously productive in contributing to the good life of many’ 9
Penner’s claim goes to the very heart of debates about the legitimacy of private prop-
erty in principle, and, as Harris and others illustrate, goes to the very outlines –
the
limits and institutional design –
of the manifestations of the property institution.
Rather, it seems that the rationale for an institution which confers powers and benefits
over some but not others (and often at the expense of others), and which has such a
profound impact on the nature and quality of human associations, must be justified.
The reasons must be discussed, and continually revisited and rediscussed. These is-
sues are part of the idea of property. Perhaps the discourse of justification does not
encompass all of the contours of the institution, but it is a necessary part of it. It is ex-
plicitly in Harris’s recognition of property’s controversiality, and implicitly in his
analysis of the traditional justifications for private property and their connections to
the institutional design of the institution, that the necessity and role of the discourse of
justification become clear.
“Making Law Bind, supra note 9.
“Although, as I argue in Deon-Telos, such a view might still be advanced under the traditional
schema: see supra note 12 at c. 2.
” Supra note 8 at 206-07.
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B. Justification and Normativity: A Larger Claim
Penner leaves aside the larger discourse of justification and presumes the validity
of his starting-point in the search for property’s internal normativity. Penner’s failure
to find a source of normativity internal to the institutional, “environmental” structure
of property suggests that the source of property’s normativity lies elsewhere. Harris,
on the other hand, makes no attempt to find an immanent source of normativity and
does accept the need to justify private property. Harris accepts the controversiality of
private property,” as well as the presence of other modes of regulating social wealth.
His definition of property implies as much.’ Consequently, in Part II of Property and
Justice, he sets out to analyze the traditional justifications for private property, giving
his views on the validity of each.
The structure of Harris’s argument implies that the source of private property’s
normativity resides precisely in the external, ongoing discourse of justification. That
is, not only is it necessary to justify private property because of its “essential contro-
versiality”, rather in doing so, one identifies the source of private property’s norma-
tivity and derives a pluralistic set of benchmarks for creating, interpreting and re-
forming property rules. If this larger claim about private property’s normative sources
is correct, then it would follow that Harris’s assessment of the justifications for private
property will explicitly or implicitly exhibit assumptions about the relationship of
property’s normativity to its justifying and dis-justifying arguments. The source of
private property’s normativity is too large a question to broach here, and will be left
for another day.” It suffices to say that the argument that the normativity of private
property resides in its discourse of justification will be strengthened by locating deon-
telos in this discourse, since therein will lie weighty reasons for allowing individual
human beings to deal with scarce social wealth in a specific manner.
Turning to Harris and his taxonomy and assessment of justifications for private
property, one must ask if aspects of the deon-telos of private property are in fact pres-
ent in his argument, and if not (or not enough), would their presence (or increased
presence) improve his analysis? Put negatively, this second question asks what are the
implications of not fully considering private property’s deon-telos in assessing its jus-
tification.
Both of these questions (as originally framed) may be answered in the affirmative.
First, some implicit recognition or inclusion of deon-telos is indeed present in Harris’s
analysis. There are observations made that point to property’s teleology and deontol-
ogy, particularly in the specific context or background assumptions which frame the
assessment of various justifications for private property; these are what Harris calls
his “minimal” assumptions about justice. These foundations of justification and the
structure of the argument built upon them show property institutions in the ultimate
5o See supra note 7 at 165. See supra note 25 and accompanying text.
” By building a notion of scarcity into the definition of property, distributional issues –
controversy –
follow. Harris’s definition is stated at the outset of Property and Justice, ibid. at 3.
52 I make this argument in “Normativity”, supra note 13 and Deon-Telos, supra note 12 at c. 6. My
analysis in this review article, however, certainly points at least partly to the same conclusion.
and hence
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
685
service of society and societal goods, whether these goods are framed in terms of the
individual or the collective. Put another way, the controversiality that Harris identifies
in the dual function of private property, coupled with the assumptions about justice,
necessarily weaves questions of deon-telos throughout the fabric of arguments for and
against private property.
Second, regarding Harris’s failure to deal explicitly with elements of deon-telos
and to give full weight to their role in explaining and justifying private property, it is
fair to observe that he does exhibit a rights-based view of the institution. While this
predisposition is nowhere near as strong as that demonstrated by Penner –
private
property, after all, does need to be justified according to Harris, and its benefits are not
to be assumed – Harris’s rights-based assumptions do downplay aspects of the prop-
erty institution which a fuller set of ethical assumptions would justify. These assump-
tions are readily identified in a closer examination of Harris’s assessment of property
justifications.
III. The Arguments for Private Property
As mentioned, in Property and Justice Harris does deal with the discourse of jus-
tification, and he does this very well indeed. Harris’s catalogue of the arguments justi-
fying and dis-justifying private property is relatively complete. It is fair to say that his
discussion is the most exhaustive of its kind. While one might quibble over minor or-
ganizational matters – whether one should place social convention and equality in
the same grouping of justifications, for example – Harris touches on most of the
relevant issues at some point, explicitly or implicitly. As for the justification of private
property, the reasons given are generally well-argued and usually convincing. Par-
ticularly welcome is the general conclusion that what Harris calls “full-blooded own-
the most complete set of ownership powers one can have in social wealth,
ership” –
analogous to dominium in the Civil law –
cannot be justified by any sort of natural-
rights argument. This conclusion has profound implications for the form and structure
which private property should take.
Despite these analytical strengths, there remains a flaw running through Harris’s
argument. At first glance, his analysis of the types of justification, taking into account
the way in which different justifications should be weighted, is coherent and rationally
persuasive. However, there are problems with the weight, or lack thereof, given to
certain justifications and dis-justifications. Too much weight is given to property-
freedom arguments, and in particular to the assumption that individual autonomy is
best-served when there are merely more choices, rather than better choices. This flaw,
a flaw common to all rights-based analyses, comes from failing to explicitly recognize
property’s deon-telos. Such considerations are part and parcel of the structure of
property, and actually permeate the whole of Harris’s analysis, but only implicitly.
Thus, the suggested correctives to Harris’s argument concern the proper weight to ac-
cord to deontological and teleological arguments for private property, with corre-
sponding revisions to the heavy emphasis given to rights-based justifications.
With respect to overall methodology, Harris sets out to identify those justifica-
tions that are specifically related to property: “property-specific justice reasons.”
686
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These reasons underpin property rights and present a powerful argument justifying
the existence of property institutions in modern Western society. While Harris cor-
rectly concludes that there are no natural rights to full-blooded ownership which on
their own can adequately justify the property institution, he nevertheless maintains
that there is a plurality of other justifications that serve to explain the existence and
the contours of private property. With this, I also agree. However, I disagree with the
overall tenor of the argument which is too rights-based and leads to errors in weight-
ing the various specific arguments for and against private property with the expected
effects on institutional design.
What is more, the rights-based approach can result in the exaggeration of the
ubiquity of private property, and the downplaying of alternative structures for the
regulation of social wealth. In Harris’s view, these property-specific reasons do not
merely reveal private property’s justification in specific societies and the institutional
design of various private property systems, they also justify the claim that every mod-
em state should have some kind of property institution. Says Harris:
The upshot consists of a mix of morally viable property-specific justice rea-
sons. I offer them to all those concerned with political and legal questions
about distribution and property-institutional design. They are relevant to such
questions because it is these same property-specific justice reasons which, I
shall argue, support a moral right of every citizen of a modem State that his so-
ciety should provide a property institution, but only one which is structured so
as to take account of what justice does indeed require.
… Supposing we agree, minimally, that justice makes the following demands:
people should not be treated differently on the basis that some kinds of human
beings are inherently inferior to others; some degree of autonomous choice
should be accorded to everyone; and unprovoked invasions of bodily integrity
should be banned. Does it follow that the external resources of the world ought
to be brought within the domain of some kind of property institution’?
While there is no intuitive answer to this question, the answer resulting from a careful
step-by-step analysis is a resounding yes, according to Harris.
This conclusion is too strong if one equates property with private property, as
Harris generally does. In order to succeed, Harris would have to show that the basic
demands of justice could only be met by private property, and not by some other con-
ception of property. In my view, this question remains open. Given the critique which
follows, one could only arrive at such a conclusion after an assessment which is gen-
erally rights-based. While the issue of possible alternative conceptions of property is
not directly discussed, the whole of my argument for the inclusion of deon-telos in the
property discourse suggests that alternatives may be preferable, according to an en-
riched congeries of property-specific justice reasons. That is, private property, in its
most absolute form, might not be a necessary requirement of justice in all societies,
though a more limited private property institution might be. In any event, even if one
might suggest correctives to the substance of the discourse, Harris’s discussion on its
3Supra note 7 at viii.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
own illustrates the presence of the justificatory discourse that is the moral background
for the private property institution.’
A. Background Assumptions: The Normativity of Private Property
What are Harris’s careful steps in building his argument? Harris’s opening ana-
lytical moves comprise, first, the positing of “minimal” assumptions about justice pre-
sent in the passage above and, second, the attempt to specify the relation of justice to
property and vice-versa. He attempts to discern a “middle-level’ of justificatory prop-
erty discourse which is more explicitly tied to private property than are more general,
abstract discourses on justice. Both these analyses are critical to Harris’s project and
its outcome; in particular, the tenets of minimal justice and the assumptions about the
relation of the individual to society that they exhibit reveal a great deal about Harris’s
idea of private property.
1. Minimal justice
The assumptions of minimal justice are threefold: namely, the protection of natu-
ral equality; the value of autonomous choice; and the protection of bodily integrity.
According to Harris, these assumptions are not necessarily the foundation for larger
claims for social ordering. Rather, they serve only to justify private property. (Of
course, since property is so close to our Western notion of just ordering, these three
basic assumptions do a great deal more work than Harris admits.) Moreover, these
tenets transcend, according to Harris, both moral realism and conventionalism to
overcome linguistic and conceptual scepticism. Harris tries to plough a middle ground
between the argument that there is an objective or transcendent moral standpoint ac-
cessible to all human beings and the position that all morals are relative, thereby
forcing a society to agree on what its moral standards will be. While I am sympathetic
to the attempt to pursue a balanced theoretical approach to questions concerning the
ontology and the epistemology of justice, I am not sure that Harris has succeeded in
doing so.
The first minimal assumption is that all human beings possess some measure of
natural equality, since no one could plausibly argue that a person belongs to an intrin-
sically superior genus. This entitles persons to at least a measure of negative equality
–
in Hart’s terms, “treating like cases alike”
its rights as well as its limitations –
, I argue elsewhere that this discourse justifying privateproperty. unearths the source of private
property’s normativity (see “Normativity”, supra note 13 and Deon-Telos, supra note 12 at c. 6). That
comes from the values and
is, the shape of private property –
rationales it is meant to foster and embody, and the duties that flow from these individual and com-
munal imperatives. I believe that these reasons are historically and contextually situated, and that they
vary in normative intensity in accordance with the moral and utilitarian imperatives which underlie
them. There are a variety of justifications for private property, many of which are moral. The structure
of Harris’s argument, weighing justifications according to minimal assumptions about societal justice
and property, makes this point implicitly but clearly.
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If treatment of a certain kind is due to one human being, X, nothing less is due
to another person, Y, merely because Y is an inferior type of human being to X.
If treatment of citizens varies according to age, disability, or gender, the differ-
entiation has to be justified on some other ground … [or those disfavoured] are
inherently inferior kinds of human beings. That is what we mean by ‘natural
equality’ .55
Thus any debate about justice requires us to “stand in the same relationship of mutual
humanity to one another.””6 As applied to property, this minimal condition requires
that differences in use and distribution privileges be justifiable by some morally per-
suasive argument, since abstract natural equality gives a prima facie entitlement to
equality in the distribution of the earth’s resources. Harris believes this to be relatively
uncontroversial.
This is an important assumption. As applied to property, it requires more than
merely formal, criterial adherence to the principle of treating like cases alike. While
formal requirements of negative equality are no doubt a part of this aspect of justice
generally, with respect to property rules, it will be difficult to escape substantive con-
cers. There must also be some inquiry into the substance of equality that results from
the formal treatment of individuals, since property rules go to the allocation of social
wealth. In other words, treating like cases alike in the context of the distribution of so-
cial wealth will necessarily blur distinctions between formal and substantive criteria.
In addition to questions of “how”, any difference in distribution privileges will also
touch on questions of “how much”.
The second of Harris’s minimal assumptions is that some degree of autonomous
choice over some range of actions is a good to be fostered among human beings. This
assumption is grounded in the fundamental idea of human agency, specifically in the
fact that human beings are capable of choosing and acting independently of their in-
clinations. Respecting and fostering human agency is entailed in respecting human
personhood. This is a widely-accepted view, according to Harris, regardless of
whether one is a proponent of “negative” or “positive” liberty, of liberal “individual-
ism” or “communitarianism”. He states:
Given that respecting personhood is intrinsic to just treatment, it follows that,
other things being equal, it counts in favour of the justice of an institution if it
accords a wider rather than a narrower scope for autonomous choice. In that
sense, “freedom” is a consideration of justice. Furthermore, other things being
equal, the wider the range of autonomous choice the better. … “[F]reedom” of
any kind presupposes choice and, at the abstract level, more choices must entail
more freedom. All liberals and most non-liberals would, it is thought, assent to
the bald assertion that autonomous choice is to be valued, differ though they do
as to the kinds of social arrangement which make genuine choices possible.”
This is the critical assumption made by Harris and represents the point of divergence
in our analyses. The assumption colours the whole of Harris’s argument. Harris as-
5 See Harris, supra note 7 at 171.
56 Ibid. at 172.
57Ibid. at 173.
1998]
D. LAME-TI – PROPERTY AND (PERHAPS) JUSTICE
sumes not only the good of autonomy per se but also that this good is manifested
more completely in a wider range of choices. With respect to property, the imperative
of autonomy might entail that an unlimited range of use-privileges and powers goes
with a given property entitlement and, in particular, with full ownership, at least until
explicitly restricted by the community or the state. But the concept of private property
should not be considered as having a prima facie unlimited range of choices, even if
only a theoretical starting-point.
While most would agree that the provision and protection of some degree of
choice is fundamental to protecting autonomy, not all would agree that all choices are
to be treated equally, or that more choice is a value in and of itself. Harris does clearly
disassociate himself from those who take the position that more choice is better, yet
he appears to imply this very conclusion. So despite claiming to take no side in the
communitarian and individualism debate, Harris has implicitly done so. He does this,
first, by focusing, without argument, on individual choices as the reason to accord
autonomy and, second, by avoiding the question of the quality of a person’s choices.
In my view, certain choices are better than others and some substantive values are
“thicker” than others with respect to justifying choices.” This means that some
choices deserve more protection, and should necessarily be provided. It does not
mean that all choices need be provided or are deserving of protection, or that more
choice is always better than some choice. Harris’s assumptions mean that any so-
called communitarian reasons for fostering or restricting individual autonomy will be
more difficult to identify and adequately assess and, in particular, the distinction be-
tween and among better choices will be impossible to draw. Harris admits that com-
munities may choose to put value on certain choices over others;”9 however, in focus-
sing too much on range of choice, Harris opts for quantity over quality. In doing so,
he has opted for a liberal-individualist view. An autonomy-based justification may di-
rectly or indirectly serve community as well as individual goals, and while these may
be secondary in nature to individual benefits of autonomy, they are not irrelevant.
As a result, I would argue that the inquiry into autonomy must focus on teleologi-
cal and deontological concerns, writ large. Why is autonomy good? What benefit does
it promote for individuals and the community? What goods are better than others in
terms of reaching these desirable ends? Such questions place greater emphasis on the
substance of individual choice, as opposed to the mere range of choice. They high-
light not only why some choices are better than others but also why the state may take
different stances with respect to the provision, protection and even the promotion of
certain choices over others. Since social wealth composes the subject-matter of prop-
erty discourse, the inquiry must discuss the objects of social wealth in both senses of
the word “object”. If Harris could incorporate this type of discussion into his justifi-
catory analysis, a more balanced, and less rights-based, view would emerge.
See, most importantly, Taylor, supra note 16, especially Part I and the discussion of “hyper-
goods”. Taylor strongly disagrees with the view that all choices are to be treated equally. For a discus-
sion of “thick” concepts, see Williams, supra note 16 at c. 8-9.
” As does, perhaps ironically, Joseph Raz, whose is regarded as the leading proponent of autonomy
in analytical jurisprudence. See J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986).
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The third and final minimal condition of justice identified by Harris asserts that
human beings have a right not to have their bodily integrity interfered with. Without a
very strong justification –
“medical treatment, promotion of public health, self-
defence, just punishment, the maintenance of order or legitimate struggle” –
all un-
provoked invasions of bodily integrity are “natural wrongs”, whether committed by
individuals or by the state.’ Harris does not, however, elevate this claim to one of self-
ownership, as has often been done throughout the history of political philosophy.” For
the purpose of my argument, there is no need to elaborate further on this minimal
condition; Harris’s position is quite persuasive. 2
After identifying these three underlying assumptions of minimal justice, Harris
uses them to assess rationales for private property and its institutional design. But is
the schema too heavily weighted in favour of the individual over more communitarian
imperatives? Harris is clearly trying to set out minimal conditions which would be ac-
ceptable to most participants in discussions of property and justice, yet there is
enough scope for the interpretation of these agreed-upon conditions to take a form
which would not be acceptable to all participants. Harris’s articulation of these three
assumptions gives a great deal of weight to individual freedom and decision-making
in the determination of individual best interests. Principles of natural equality, auton-
omy and bodily non-interference all focus primarily, if not solely, on the individual.
Moreover, little attention is devoted to the social dimension that is built into these as-
sumptions (although the door is left open). As such, it is not surprising that the prop-
erty-specific justifications which Harris deems persuasive exhibit a preference for the
individual (and the individual’s rights). The over-arching metaphoric and organiza-
tional weight given to ownership in Part I of Property and Justice, leading to prima
facie ownership rights, is consistent with this observation, and is perhaps explained by
it.63
2. Property-specific justification
While no complete picture of justice can be solely comprised of questions about
property, neither can a picture of justice be complete without a discussion of prop-
erty.” Harris observes that “justificatory and disjustificatory arguments about the
60See supra note 7 at 174.
61 Most famously by Locke, supra note 37 at 287, para. 27. See also various essays by G.A. Cohen,
Self-Ownership, Freedom and Equality (Cambridge: Cambridge University Press, 1995), as well as
the works cited by Harris, supra note 7 at 184-97.
62 Indeed one might go so far as to argue that those who posit the right to non-interference with
bodily integrity as a property right grounded in self-ownership are unpersuasive precisely because of
the impact such rights-based arguments have on other areas of property law.
6 See Harris, supra note 7 at c. 5-6 entitled “Ownership as an Organizing Idea” and “Ownership as
a Principle”. I have discussed the connection between the substantive roles played by ownership as
principle and organizing idea and a rights-based view in “Normativity”, supra note 13.
“Rawls, for example, does have a picture of private property in A Theory of Justice, most clearly in
the discussion of the “difference principle” and the discussion of economic systems and public goods
(see supra note 16 at 265ff.).
1998]
D. LAMETTI – PROPERTY AND (PERHAPS) JUSTICE
proper use and distribution of resources commonly play an independent role in the
tradition of political philosophy. At the level of grand theory they must be subsumed
within some master vision “” The larger, general-level arguments, in Harris’s view, in-
volve moral claims about property, and point towards an ultimate basis for property
rights. They also serve to organize groups of more particular arguments. These or-
ganizing claims are: first, that there are natural rights to private property; second, that
social convention is, if not the sole basis, one of the ultimate bases of property rights;
and third, that the principle of equality of resources should bear on the distribution
and use of private property. A “grand theory” will then account for how these are
weighed against each other. This is undoubtedly true and is, indeed, the main point of
my argument; one will need to have a grand theory, and explicitly state it at some
point.
Yet Harris argues that more focused property-specific justice reasons, which are
directly associated in some way with property use and distribution, can be detached
from the grand theories and discussed at a middle range or intermediate level. With
this approach, one need not enter into larger normative debates or reveal one’s master
vision. I am not sure this is possible. In my view, Harris’s middle-level analysis, not-
withstanding efforts to the contrary, is based on a distinct, though unstated, master vi-
sion.
Harris groups these property-specific justifications into four categories of argu-
ments. The first group of arguments revolves around the attempt to justify private
property as the result of some individual’s specific interaction with the world. In this
sphere, one finds property arguments based on claims emanating from self-ownership,
from creation without wrong, first acquisition, personality or privacy. As we shall see,
Harris assesses and accords no weight to some of these arguments (self-ownership,
creation without wrong and first acquisition), and limited weight to others (personal-
ity and privacy). In general, according to Harris, when an individual’s interaction with
the physical world justifies some sort of property-based desert, a measure of justifi-
catory weight will be given to a theory based on promoting those actions. In particu-
lar, desert theories which attach to one’s labour (labour-desert theories) give the “shell
of a natural right:”‘ determining that one should be rewarded for labouring without
specifying the desert. The type of reward, or the content of the right, must be supplied
by convention.
The second group contains the arguments for and against property based on pro-
moting and protecting individual freedom and autonomy. As shall be argued below,
this group of justifications is accorded the most weight by Harris.
The third category contains instrumental justifications. These utilitarian concerns
assess the type of property institution one should have, given one’s specific goals and
objectives in utilizing the property institution. According to Harris, these play a pri-
mary role in the institutional design of private property. However, Harris relegates
these concerns to a secondary status by downplaying the teleological aspects of pri-
‘ Supra note 7 at 168.
” Ibid. at 209ff.
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vate property. The goals property serves, both collective and individual, are as neces-
sary to its justification as to its design.
Finally, Harris groups social convention and equality arguments together as a
fourth category, although in substance he treats these as two larger, general arguments
for private property. Social convention arguments hold that private property is a prod-
uct of socio-political agreement. Equality arguments serve as a benchmark for ana-
lyzing the distribution of private property. These two categories of justification are
placed on par with natural rights, in which each of natural rights, social convention
and equality comprises one of the three meta-groups of argument embedded in some
wider grand theory.
Harris carefully examines each of the various strands of these four categories of
justification under the light of his initial assumptions about justice and the specific
imperatives of institutional requirements. This analysis leads to the important conclu-
sion that there are no natural rights to full-blooded ownership:
We said at the beginning of the last chapter that[,] if there are any natural prop-
erty rights[,] that would radically affect the moral background against which
property institutions operate. It emerges from our investigation in this and the
last chapter that there are no natural rights to full-blooded ownership. Given
our minimalist conception of justice, no relationship between an individual and
a resource arises such that just treatment of the individual requires that a prop-
erty institution both surround the resource with trespassory rules availing the
individual and anyone to whom he chooses to transfer the resource and also
conferring on the individual unlimited use-privileges, control-powers, and
powers of transmission over the resource.”
According to Harris, full-blooded ownership, to the extent that it exists and is pro-
tected by legal trespassory rules,” is a creation of human convention and must’ find its
ultimate justification in one or more of the other rationales.
What follows is an analysis of the main lines of Harris’s middle-range arguments
on justification and dis-justification. The discussion will focus on the fundamental
points of disagreement and suggest that the preponderance of individual rights-based
arguments of justification be reduced. While Harris claims to have denuded any natu-
ral-rights arguments to full-blooded ownership at a higher level, it seems that his de-
tached, middle-level, prima facie right to full-blooded ownership” does the work a
full-blown natural rights justification would do in justifying the scope of property
rights in a grand theory. Positing full-blooded ownership as aprimafacie right gives it
a paradigmatic status which, combined with ownership’s presence as a historical or-
ganizing principle and the weight given to autonomy arguments, still betrays a strong
rights-based view. Perhaps any argument that posits the mere possibility of full-
prohibiting a general class of persons from acting in a certain way: see ibid. at 24ff.
67Ibid. at 228.
‘ Trespassory rules are defined by Harris as the rules which protect property powers of owners by
‘ Harris uses “prima facie” in the sense that the private-property right should not be intrinsically
excluded from just society: see ibid. at 277-78. Arguments to lessen the substantive scope of the right
thus begin with the burden of justifying the restriction.
1998]
D. LAMETnI – PROPERTY AND (PERHAPS) JUSTICE
693
blooded ownership for more than relatively trivial chattels or movables is necessarily
rights-based.
B. The Arguments and Their Weight
The following categories and sub-categories of arguments loosely follow Harris’s
organization of middle-range arguments. My purpose in this section is to indicate how
the crucial, rights-based assumptions identified above underlie the assessment of the
persuasive force and subsequent normative weight given to each so-called property-
specific argument, and how one might re-balance the force given to an argument by
taking property’s deon-telos into account. The suggested corrective, de-emphasizing
the rights-based autonomy arguments implicit in Harris’s analysis, is a result of this
accounting. For this reason, the arguments under the second category, “Freedom and
autonomy”, will be dealt with in greater detail.
1. Individual interaction with the world
Harris’s first group of potential property-specific justifications is perhaps the most
famous and the most commonly identified in the history of property theory. They in-
volve situations where an individual, through some action in the physical world such
as labour or appropriation (Locke’s famous example of plucking an apple from a tree
springs readily to mind) makes some claim to property rights.
a. Self-ownership
The most basic arguments for justifying private property in this category begin
with the oft elaborated idea that we “own” ourselves.’ Harris spends a great deal of
time analyzing traditional and possible arguments “from self-ownership”. None of
these, according to Harris, are persuasive. Rather, such arguments lose their normative
force and “sink without a trace” in light of what Harris calls “the spectacular non se-
quitur.’7′ It is widely held by many thinkers that human beings have a natural measure
of equality and freedom from slavery. Harris agrees with such arguments; recall his
first minimal assumption of natural equality. Yet nothing can be derived from this
equality in respect of self-ownership. “From the fact that nobody owns me if I am not
a slave, it simply does not follow that I must own myself. Nobody at all owns me, not
even me.’ 2 Hence, it is a non sequitur to deduce individual self-ownership from in-
nate human freedom.
Rather, Harris argues that a principle of freedom of “bodily-use”,’ given the
minimal assumption of equal status, has enough normative weight to stand on its own
and determine a range of practical issues, without resort to self-ownership or property
70 See supra note 61 and accompanying text.
7 Supra note 7 at 196.
2
” See ibid. at 188.
ibid.
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discourse. “Property rhetoric in this context is unnecessary, usually harmless, but al-
ways potentially proves too much.”” So while we might use property language in lay
discourse to describe a familiar and powerful principle –
the idea that we and only
we have a right to control our own bodies –
one must not put self-ownership inside
the property institution and draw conclusions therefrom. In Harris’s view, Locke,
Nozick, Mill and Marx were all guilty of making this inferential leap.75
Harris’s views on this debate are most welcome.” The excesses in the debate, ex-
emplified in Robert Nozick’s Anarchy, State and Utopia,” are individualistic in the
extreme and have the effect of undermining legitimate steps on the part of the state to
regulate the use and allocation of social wealth. Harris’s position helps to destabilize
such strident rights-based views. While one might press Harris on the borders of his
position –
for example, how one would treat a pacemaker or one’s own recently-
his argument on self-ownership seems intuitively
clipped hair destined for a wig’ –
and logically reasonable, as well as judicious.
b. Creation-without-wrong
The second type of individual-interaction justifications, namely creation-without-
wrong arguments, are adequately described by their label. These seek to reward indi-
viduals who add to the total wealth of a society through their own actions without di-
rectly or indirectly harming anyone else. “If a person (1) creates a new item of social
wealth, and (2) wrongs no-one in doing so, it follows that (3) he ought to be accorded
ownership of that new item “‘” Its most famous manifestations are the Lockean provi-
sos of “enough and as good” and “non-spoliation”; one can appropriate land as long
as the remaining pool of resources is still “enough and good” for further appropria-
tion,” and one can accumulate resources so long as one can use them without wasting
them.” An analogous argument is found more recently, in a reworked fashion, in
Nozick.’2 In a more limited way, Mill counted creation-without-wrong as a justifica-
tion to all resources except land, implicitly recognizing the difficulty that the accu-
mulation of land presents over time to the maintenance of an equitable pool of re-
maining land resources. Land is the original inheritance of the whole species: it is
neither created by man nor can it be appropriated without impact on others.”
As with self-ownership, Harris gives this popular argument no weight. He claims
that its fatal flaw resides in the need to protect a property entitlement with a trespas-
7 4Ibid
75See ibid at 188-97.
“A previous version of Harris’s arguments on self-ownership was published as “Who Owns My
Body?” (1996) 16 Oxford J. of Leg. Stud. 55.
7’R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).
7’1 am indebted to Rod Macdonald for this insight.
79Harris, supra note 7 at 197.
“0 See Locke, supra note 37 at 290, 291, paras. 31, 33.
“See ibid.
“See supra note 77 at 174-82.
“See J.S. Mill, Principles of Political Economy (Fairfield, N.J.: Augustus Kelley, 1987) at 233.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
sory rule; one cannot unilaterally create trespassory rules, or potential wrongs for oth-
ers. Just because someone has produced or created something new, it does not follow
that the person ought to be able to prevent others from using it.” One may deserve a
reward, but that is not necessarily a property entitlement, not even a simple entitle-
ment to use (what Harris calls “mere property”), let alone full-blooded ownership.
Perhaps most important for modem societies, even ideational entities –
intellectual
cannot be justified in this way, as these resources require that an artificial
property –
scarcity be imposed and protected by society when the idea is introduced into the
public domain.
This approach is most persuasive. There is a logical inconsistency in the creation-
without-wrong argument. It posits that a good might be created independent of others
such that no harm should be done, yet it depends on others in the sense that some ex-
cess demand for the newly created resource or an element of scarcity is a necessary
definitional requirement for this (and all) types of private property. If one created
something which was not scarce or easily reproducible by others, there would be no
property question. Robinson Crusoe had no need of property rules, particularly those
based on creation-without-wrong arguments, before Friday. So it seems unlikely that
one could create anything of value, any item of social wealth, without somehow dis-
advantaging others, even if only indirectly.
According to Harris, creation-without-wrong arguments can, however, be coupled
with other, usually instrumental arguments to partly justify property entitlements.
Thus, rights to newly-created resources might be justified in some other way, such as
through instrumental, creator-incentive arguments which try to foster a certain type of
practice.” The arguments can serve to partly justify entitlements in a situation where
the actions of a creator of some new item of wealth merely concretizes existing obli-
gations.”
c. First acquisition
No weight is given by Harris to yet another traditional and well-known – per-
argument in favour of private property: first acquisition.
haps the most well-known –
First occupancy or first acquisition is also aptly described by its label: the first person
to occupy some previously unoccupied tangible resource should be its owner. The ar-
gument can be used to justify the individual ownership of certain tangible resources,
usually land, or it can be used to justify (or dis-justify) ownership of land by a com-
munity.” Western legal systems assume this, or at least are predicated upon it, in that
” See Harris, supra note 7 at 202-03.
‘3 See ibi at 28.
‘6 See ibid at 203, 293ff.
” An example is the “fruits doctrine”, where the owners of a resource get what that resource pro-
duces or transmutes into. Other incentive-based justifications are still necessary to ground the fruits
doctrine, as not all of its ramifications –
are explainable in terms of creation-without-wrong: see ibid at 203-04.
an increase in value without added labour, for example –
“Aboriginal land claims, for example, might have arguments based in communal first-occupation.
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they protect pre-existing entitlements without investigating the justice of this claim
after a certain time. Furthermore, most systems contain some rule allowing the acqui-
sition of res nullius, even if in a restricted fashion.” Thus, Harris discusses this provi-
sion in terms of an assault analogy; once something is occupied, society will protect
unwanted invasions, just as it prevents bodily invasions.
Harris’s conclusion is that first acquisition might, at best, provide some right to
protection of occupied property, whether held by an individual or a group, pending
confirmation of the entitlement. But in his view, no property entitlement (Harris says
“ownership interest”), whether full-blooded ownership or mere property, is ever justi-
fied by this theory. I agree with this conclusion, even if Harris’s assault analogy is a
bit forced. First acquisition arguments directly contravene arguments of minimal
equality and, without some sort of Lockean “enough and as good” proviso, serve to
justify huge inequities in distribution. The assumption of first acquisition theories is
one of the downfalls, in my view, of purely formal theories which either allow for or
assume first acquisition in spite of strong claims to equality.”
d. Labour-desert
The labour-desert argument is the most positively cast variant of the Lockean
model, and goes much further in justifying private property than either first acquisi-
tion or creation-without-wrong arguments. Under a labour-desert argument, if a per-
son through his labour confers a benefit on someone else, he deserves to gain recom-
pense with some item of social wealth. The focus in this argument is on the worthi-
ness of the labour and the appropriateness of the reward or, more precisely, of a prop-
erty entitlement as the just reward. Such arguments have been advanced by a number
of classical and modem writers.”
Harris finds this argument somewhat more plausible than the other types of indi-
vidual-interaction arguments. This accords with his strong predisposition in favour of
individual autonomy. One should note the autonomy-based foundations in Harris’s
view of the labour-desert arguments:
[A]nti-desert arguments are incompatible with the second element of our
minimalist conception of justice, on the assumption that the individual’s work-
ing activities come within the range of valued autonomous choice and that the
range is not coterminous with marketable outcomes. Their rejection does not
by itself, however, establish the soundness of desert claims in general, let alone
of any particular desert claim. The second element holds only that autonomous
See eg. article 914 C.C.Q. where acquisition is restricted in scope to things and is inapplicable to
territory (art. 918 C.C.Q.). See also the eventual taking over of such articles by the State (arts. 934,
935 C.C.Q.), and the rule that something merely lost is not res nullius (art. 939 C.C.Q.).
90 Kant’s theory of property, as articulated in The Metaphysics of Morals, trans. M. Gregor (Cam-
bridge: Cambridge University Press, 1991), Part I, is plagued precisely by its weak treatment of the
impact of first acquisition on the possibility of formal equality.
“‘ Such an argument can be extracted, in part, for example, from both Mill and Locke. More recent
expositions are contained in Becker, supra note 3 at c. 4, in particular at 48ff.; Munzer, supra note 3 at
c. 10.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
697
choice is a value to those who make the choices. Whether choices over work-
ing activities are meritorious and whether, if they are, the appropriate response
from fellow citizens is “reward” cannot be settled independently of social con-
vention! 2
Thus, labour-desert is to be valued because of the incentive and protection it affords to
autonomous choices. While Harris’s final assessment of desert claims recognizes the
limits of such a claim on specific items of social wealth, the value of fostering
autonomous choice gives these arguments some merit:
All desert claims are hostage to convention. Nevertheless, if the conventions are
in place, they serve the purpose of marking society’s recognition of the value of
autonomous choice. They concretize that aspect of justice in relation to the la-
bouring activities singled out as meritorious and reward-worthy. In that sense,
desert claims constitute a derivative, but none the less important and distinct,
facet ofjustice.9′
In particular, social convention is required to say precisely what kind of labour is
meritorious, and what kind of reward is fitting for someone’s labour. It does not nec-
essarily follow that all work deserves a reward, or that if a reward is deserved, prop-
erty will be the chosen means. This is particularly true with respect to intellectual
property.4
According to Harris, therefore, labour-desert provides a shell of a natural prop-
erty-right to be filled by convention. It is a micro justification for property allocation,
taking its place among the mix of property-specific justifications. In this sense, it par-
allels Munzer’s placement of labour-desert as a less influential type of justification
than either justice-equality or utility-efficiency arguments!
The point made about the role of convention in the labour-desert justification is
well-taken. However, and somewhat ironically, a consideration of private property’s
deon-telos can afford labour-desert argumerits an even stronger justification than a
simple autonomy-based analysis. This is the case because a consideration in such cir-
cumstances of property’s teleology allows society to justifiably reward some choices
over others. Deon-telos allows one to make a fuller analysis of the comparative bene-
fits of certain autonomous choices. James Tully’s “workmanship model” of labour-
desert, articulated in the explanation of Locke’s justification for private property, is
perhaps the most important argument of this kind.” Tully argues that, in Locke’s view,
one should labour productively in order to improve oneself and the lot of human be-
ings. This was grounded in Locke’s theology, and specifically in the belief that as God
made mankind and endowed it with God-like powers of reason, mankind should imi-
tate God’s creative activity. For this there would be a reward; as we are God’s prop-
erty, as the product of His hand, so is property ours, as the product of our hands.
92 Supra note 7 at 207.
93 Ibid.
” See ibid. at 296ff.
9’ See Munzer, supra note 3 at 254.
96 See J. Tully, A Discourse on Property: Jolm Locke and His Adversaries (Cambridge: Cambridge
University Press, 1980) at 8-9, 108-10.
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Framed in this way, Lockean labour-desert entails an explicit teleology, which it
serves. Humankind, taken as individuals, is improved, and human society is improved
in the workmanship view.
The same argument holds true, in my view, for any labour-desert theory. Re-
warding labour-desert not only protects a range of autonomous choices but also posits
one type of activity, productive labour, as an intrinsically valuable autonomous choice.
Harris seems to acknowledge this, but then does not give it full consideration. He
writes:
There are two reasons for alleging that a person who works deserves a reward.
The first is that he has chosen to be industrious, whereas he might have been
idle or less industrious. The second is that, through his work, he has achieved
something which
is talent-
independent –
all who do their best have like desert claims. The second is not,
since the talented are able, if they choose to make use of their talents, to pro-
duce achievements which the less talented cannot.
is worthy of admiration. The first ground
Both arguments appeal, on the one hand, to the moral relevance of autonomous
choice and, on the other hand, to a conception of morally appropriate human
interaction. If people choose to engage in tasks which are of any value within
the human scheme of things, they are in a morally-relevant different relation-
ship vis-&-vis others from that which they would have been in had they chosen
not to work. The morally appropriate reaction on the part of their fellows is
“reward”.97
Initially, then, there appears to be some scope for considering the moral merit of cer-
tain types of productive activity. But shortly thereafter, in rejecting anti-desert argu-
ments, Harris appears to close the door on the possibility that moral considerations
might serve to assess and reward one’s labour:
The second anti-desert argument claims that every person ought to engage in
valuable work to the best of his ability, so that “reward” is inappropriate. A per-
son may well see his own case in just this light. But for the rest of us, to with-
hold any kind of commendation on the ground that “[y]ou merely acted as you
ought” would be an unattractive mode of human interaction. It would obliterate
the moral difference between obligatory and supererogatory action. More im-
portantly, it would presuppose a complete subservience of the individual’s
work-potential to the requirements of others. Only the most extreme form of
communitarianism would accept such an ant-like denuding of individuality.
The argument fails if we reject, as a moral starting-point for judging interac-
tion, the view that the individual should employ his energies in all and only the
ways which the community deems most valuable!”
Here Harris describes an extreme where a communal imperative dictates productivity,
rendering a reward unnecessary. Moral considerations –
the protection of individual-
ity –
are only used in this argument to defeat the idea that no reward is necessary.
But the idea that moral considerations, whether individual or collective in their object,
might play a reasonable role in assessing labour-desert arguments is not adequately
‘ Supra note 7 at 206.
9′ biL at 206-7.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
canvassed. A society might well be justified in rewarding certain types of productive
activity on moral grounds, even where one “acted as he ought” Harris’s presupposi-
tion of complete subservience is too strong.
Indeed, there is a middle ground; moral considerations can play a role without
erasing either the idea of autonomy or the idea of rewarding good action. There are a
range of communitarian conceptions of the good, and attitudes and acts which serve
to promote and foster that good. These, while not obligatory, are preferable to certain
other possible acts. Thus a community can choose to foster these chosen goods, and
to reward those who choose to so act. This position neither “obliterates the difference
between the obligatory and the supererogatory” nor “denudes individuality.’ Under
such circumstances, labour-desert may be a stronger justification than Harris would
admit, though for communitarian and not individualistic reasons. It is also a clear rec-
ognition of specific aspects of property’s deon-telos, in that the teleology behind pri-
vate property choices are exposed, as are concomitant duties and rights.
e. Personhood-constituting
Arguments that focus on private property’s role in becoming or developing part of
a person’s identity or personhood are commonly labelled “personhood-constituting”
arguments. The most famous of these is Hegel’s discussion of property in The Phi-
losophy of Right,” the most recent is Margaret Jane Radin’s analysis.” Harris illus-
trates these types of arguments by once again using the analogy of assault. Respect for
personhood underlies the universal ban on assault as illustrated in the bodily-freedom
principle; it follows that if a person’s property is integral to personhood or self-
identity, then property should be accorded analogous protection (by trespassory
rules). Moreover, since people have powers over their own bodies (recall that these are
not ownership powers as such), similar use-privileges and control-powers should be
accorded over the objects of property. Harris points out that personhood arguments
must be distinguished from autonomy or freedom arguments, all of which can over-
lap.
Yet in Harris’s view, the argument cannot stand alone; it must either appeal to
cultural assumptions and conventions, or else fall prey to idiosyncrasy.” In addition, it
may be inadequate to explain alienation rights:
Since personhood itself is non-transferable, it must be a sine qua non of any
claim that a person has incorporated an external object into himself that is
something he could never envisage as belonging to anyone else; and that is
hardly the light in which most people view even their much-loved houses or
flats. Perhaps wedding rings, sacred mementoes, or even never-to-be-seen dia-
Ibid.
‘. G.W.E Hegel, Elements of the Philosophy of Right, A.W. Wood, ed., trans. H.B. Nisbet (Cam-
‘0’ See supra note 4.
” Radin recognizes this point, and attempts to use an intuitive reformulation of Hegel’s central idea
bridge: Cambridge University Press, 1991) at 73-114.
to get around it. To a certain extent, I believe she is successful. See ibid. at 47-48.
700
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ries are instances of the personhood-constituting phenomenon. If so, the argu-
ment now under consideration could stand alone as a property-specific justice
reason for recognizing an ownership interest over such things (even if owner-
ship could be justified on no other grounds); and the argument would support
some features of property-institutional design –
for example, that such things
should be exempt from bankruptcy or tax-expropriation rules. 3
Therefore, according to Harris, unless the personhood argument can be combined
with something else, it will fail to justify full-blooded ownership since it cannot fully
explain the transfer of property entitlements.'”
Once again, I believe Harris has grasped the ultimate limitation of this type of ar-
gument. While personhood might grant some limited rights of use, it does not justify
rights to alienate, often presuming them afterwards.”5 However, for reasons similar to
those advanced on labour-desert, Harris is perhaps guilty of underplaying the persua-
sive force of the personhood metaphor. Suffice it to say, the assault analogy used by
Harris seems more akin to a freedom or autonomy argument –
the creation and pro-
tection of some small sphere of social wealth close to the person –
than it does to
what I see as the most powerful element in both Radin’s and Hegel’s casting of the
developmental argument. Access to private property helps one develop as an individ-
ual in the context of one’s community. By focusing on protection against intrusion,
Harris’s treatment makes this approach look more like a static privacy argument.
to what end should the person and society be aspiring? –
The personhood argument can be seen in a less individualistic light, particularly
in Hegel’s work. Even if the primary focus of personhood analysis is on individual
development, there is nonetheless a collective good that results from the positive de-
velopment of the individual, and subsequently or concurrently, from the collective de-
velopment of the whole. Once again, a focus on the teleology of personal and com-
munal development –
and
a recognition of mutual duties associated with that process provides a platform from
which a society can declare that certain types of personhood-constituting property re-
lations are beneficial and should be fostered. In Hegelian terms, the individual and the
community develop in lock step, from Abstract Right towards Ethical Life, where
each is submerged in the other.'” I have analyzed this idea in greater detail else-
where.'” Essentially, the developmental argument, as I see it through the teleological
and deontological filters of deon-telos, makes a sculptors’s work of art, a poet’s car-
net, or a furniture-maker’s dresser better grounds for a private property argument
based on personhood than do the examples given by Harris in the passage above.
‘0’ Supra note 7 at 223 [footnotes omitted].
,o’ See ibid. at 220-23.
‘0 Hegel’s theory, for example, assumes alienability as a logical corollary to embodiment of the
will: “It is possible for me to alienate my property, for it is mine only in so far as I embody my will in
it:’ Supra note 100 at 95.
‘0 See ibidL at Parts II, III.
” See D. Lametti, “Hegel and Property’s Ideology” (1995) [unpublished, on file with author].
1998]
D. LAME7TI – PROPERTY AND (PERHAPS) JUSTICE
f. Privacy
Harris recognizes at the outset the potentially powerful role played by privacy ar-
guments in the justification of private property. These basically assert that a person’s
privacy can only be guaranteed through some control over the social resources to
which he is intimately connected.
As we saw, when ownership is appealed to as a principle it is sometimes the
case that the justificatory force stems from assumptions about privacy. There is
a widespread, but by no means universally shared, consensus that respect for
privacy represents a valuable facet of human association. Its ramifications
range far beyond the agenda of property-specific justice reasons. Nevertheless,
it may be invoked to support a natural property right, in the way set out at the
beginning of this section. The intimate relationship which has arisen between a
person and a thing may be such that, granted that privacy is intrinsically worthy
of respect, just treatment entails recognition of an ownership interest.”
Ownership interests protect autonomy rights, which we value, and allow some scope
for freedom. Once again, the assault analogy is used; invasions of privacy are tanta-
mount to invasions of bodily integrity. The realm of privacy extends to the resources
around a person which should, in turn, be protected by trespassory rules. Here one can
see the defensive, static role performed by the hiving off of a sphere for the individ-
ual; the assault metaphor is, in my view, more appropriate for this type of argument.
Nevertheless, Harris concludes that privacy alone cannot justify a full-blooded
ownership right. As with labour-desert arguments, the actual scope of privacy argu-
ments needs to be determined in balance with communal needs. Privacy rights may be
respected quite adequately with ownership entitlements which amount to less than
full-blooded ownership. Social convention, then, fills in the substance and the scope
of the primafacie right protected by a privacy argument.'” My own intuitive response
is that Harris’s conclusions are sound. Consistent with my argument above, however,
one might profitably ask what function privacy is meant to serve in society at large,
and whether private property helps, hinders, or is neutral to this goal.
Harris concludes that this first category of property-specific justifications based
on a person’s relationship with and actions upon social resources, and containing
many familiar arguments such as self-ownership, first acquisition, labour-desert and
privacy, does not suffice to justify full-blooded ownership rights. At best, the two
strongest manifestations of this type of argument, labour-desert and personhood, give
added weight to other arguments grounded in other social facts, such as social con-
vention. While I am generally in agreement on these points, I find that Harris’s view
of autonomy undervalues the labour-desert and personhood arguments. The role of
autonomy in Harris’s analysis manifests itself even more strongly in his second group
of arguments, aptly characterized as freedom and autonomy, where a specific view of
autonomy, namely, one which aspires to be neutral as between the value of different
choices, is pivotal to the analysis.
“‘ Supra note 7 at 224.
“9 See ibid at 227.
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2. Freedom and autonomy
The second group of property-specific justice reasons does the yeoman’s work of
justifying private property in Harris’s analysis, assertions to the contrary notwith-
standing. However, Harris makes an important error here, both in terms of justifica-
tory weight and the design of property institutions. The overemphasis on autonomy,
the second criterion of minimal justice, leads to conclusions about the justification of
property that are not entailed in the arguments for freedom.
As stated above, this group of arguments revolves around the ideas of freedom
and autonomy. In Harris’s view, ownership freedoms foster the promotion of autono-
mous choice, and therefore the idea of freedom generally contributes to a prima facie
private property institution which supports these ownership powers and freedoms.”‘
Nevertheless, these arguments do not justify full-blooded ownership, they justify at
best a property institution with only minimal use-rights.”‘ Moreover, the freedom ar-
gument does not extend to all types of social wealth, since land is not particularly sus-
ceptible to these kinds of arguments. This is a balanced view. Harris is careful to avoid
the more sweeping claims of other rights-based theorists, asserting instead that liberal
ownership is not straightforwardly justifiable merely because it enhances individual
freedoms.”2
In spite of the above caveat and the care taken throughout his analysis, Harris’s
emphasis on individual autonomy places him closer to those supporting liberal own-
ership than I believe he intended to be. The emphasis on autonomy creates too strong
a primafacie entitlement for too wide a range of control and use-powers over objects.
In particular, Harris is unpersuasive in attempting to demonstrate that certain aliena-
tion privileges are justified by his approach. Rather, only hidden assumptions about
individual choice can explain the tenuous leap he makes from use-privileges in a mere
property entitlement to transmission and alienation powers in an ownership entitle-
ment. It would appear that, notwithstanding his best efforts, Harris has fallen prey to
the individualistic assumptions about ownership that can arise from certain readings
of the autonomy criterion. In addition, he is suffering the consequences for not recog-
nizing any intrinsic limits to ownership in his discussion of the ownership spectrum
and property-duty and property-limitation rules. (‘”Aunt Sally” was tougher than she
looked!”‘ ) He is unconsciously pushed by his own mindset to a substantive position
he formally eschews. This shall be argued in the following sections.”‘
“o See ibid at 231.
‘ See ibid at 238.
1,2 See S. Coval, J.C. Smith & S. Coval, “The Foundations of Property and Property Law” (1986) 45
Camb. W. 457, as well as Penner, supra note 35 and accompanying text, who, as we have seen, as-
sumes property’s justification is “well nigh indisputable” merely because of its contribution to the
well-being of so many.
” Harris claims that “totality ownership” –
is an “Aunt
Sally erected to be knocked down” (supra note 7 at 134). Yet in both Harris’s and Penner’s analysis,
an examination of rights-based assumptions reveals the pervasiveness of the idea of absolute owner-
ship.
the most absolute form of ownership –
“‘ I should point out the sub-headings in this section do not follow those in Harris’s discussion.
1998]
D. LAME-I – PROPERTY AND (PERHAPS) JUSTICE
703
a. Autonomy and ownership generally
Harris makes the following general statement about ownership and autonomy
early in his discussion of such arguments:
As we have seen, the core idea of a property institution consists in the twinned
conceptions of trespassory rules and the ownership spectrum. These concep-
tions focus on resources (material, ideational, and monetary). Property institu-
tions both regulate use and allocate wealth. “Owners” are necessarily author-
ized, not merely to act as they please in relation to resources, but to control
uses by others and to arrogate to themselves and to accumulate items of social
wealth as part of their private wealth –
the more so to the extent that the pre-
vailing conception of ownership rises up the ownership spectrum. Must it be
the case that a “liberal” conception of ownership is one which calls for full-
blooded individual ownership of all resources? Clearly not. Everything will de-
pend on the interpretation which a particular liberal theory gives to the first
element of the minimalist conception – natural equality. Autonomous choice is
to be value4 the wider the range of it the better Full-blooded ownership en-
tails a wider range of choice than any lesser conception of property right. But
it may be the case that universal allocation of resource-holdings in the form of
full-blooded ownership will have the practical consequence that some people
are treated differently from others on the ground that they are different kinds
(less well-born, less talented, less canny) of human beings. Since we are not
here concerned with the essence of “liberalism” we shall drop the adjective
“liberal” altogether. Our enquiry is whether inherent property freedoms are a
necessary feature of the just society.”‘
There are a number of points to note in this revealing passage. First, the second em-
phasized section of text suggests that merely having more choices is a better state of
affairs for the autonomous person, and that since full-blooded ownership entails more
choice, it is intrinsically better. This is not a neutral claim with respect to autonomy, as
was argued above; the idea that more is preferable is based on a very individualistic
picture of personal autonomy.”‘
Second, in the first emphasized passage, the use of the term “owner” for all enti-
tlements has implications; notice the prevailing bias in favour of all owners on the
ownership spectrum to do what they please. Common lawyers tend to gloss over the
difference in use between words like “ownership” and “having” as if nothing turns on
such distinctions.”7 Harris, in discussing the ownership spectrum, says the following:
What one may “own” (be entitled to) may be an ownership interest, or a lesser
proprietary, or other, right. Only if the entitlement is to an ownership interest
does “ownership” function as an organizing idea from which concrete privi-
leges and powers may be inferred.”‘
“5Supra note 7 at 231 [emphasis added].
“‘See supra note 57 and accompanying text.
“t Harris does this on a number of occasions, and in general considers such terminological discus-
sions as “red herrings”: see supra note 7 at 39-40, 79ff. Waldron is guilty of this same imprecision:
see supra note 3 at 56-57.
“. Supra note 7 at 80.
704
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“ownership” –
In postulating this flexible spectrum where the content of what one “owns” can differ
significantly, Harris initially appears to imply that many different property relations to
the objects of social wealth are possible and that none are necessarily preferable to
any others. All are given the same label –
despite their differing
points on the spectrum. But a closer examination reveals that this is not the case. At-
taching the ownership label to all of those various relationships to social wealth leads
to the conclusion that full-blooded ownership is the archetypal mode of ownership or,
as I would say, “entitlement”. The use of the word “ownership” applied across the
spectrum indicates a discourse predicated on the prima facie idea of unlimited use of
the resources in the bundle unless specifically restricted, as opposed to the prima facie
idea that resource holding is limited.”” Under such terms, any “owner” along the
spectrum will have the presumptive ability to use the resource as one pleases. The
only “sticks” one does not possess in the bundle of rights are those specifically re-
moved. In this sense, property theory’s dominant metaphor is in fact the inverse: prop-
erty is not about identifying what substantive powers are in the bundle of rights, but
rather is characterized by specifying what powers and rights have been removed.
Even in naming the spectrum of private property entitlements “the ownership spec-
trum”, Harris seems to rely on the applicability of the label to a wide variety of prop-
erty relationships. This accords completely with a view of ownership that gives pride
of place to individual autonomy, facilitating the widest range of possible choices for
the owner of any given entitlement.’9
b. Hegel
Harris is well aware that the Hegelian metaphysical highway is an icy one; once
on it, one must drive with care, avoid any “momentary” stops, and drive until the
end.”‘ Harris’s interpretation of Hegel is interesting, as it takes on several of the domi-
nant interpretations of Hegel, notably that posited by Waldron. I believe that as desir-
able as this conclusion might be to an egalitarian, Hegel cannot be interpreted literally
…If one does not want the ideological assumptions behind the word “ownership” to be attached to
resources such as lesser rights, such as what Harris calls “non-proprietary ownership interests”, then
one must be careful to not use the ownership label to mean “to be entitled to’ This, of course, is the
irony involved with the Civil law’s use and conception of ownership. While one might say that the
Civil law, being a system which posits a unitary concept of dominium as it starting point, is more fo-
cused on ownership than the Common Law or gives ownership a greater pride of place, by defining
ownership as but one entitlement, and being careful in the application of the term ownership, the Civil
law does not fall prey to the unconscious and often excessively individualistic pitfalls of using the
concept and the label of “ownership” indiscriminately.
,’ I have elaborated this argument in “Normativity”, supra note 13. In my view, there is more to the
difference in mind-set than the mere use of the word ownership. It also points to the substance of the
interests along the ownership spectrum and how they are meant to function. To what points on the
spectrum do we apply the full normative weight of ownership as a principle? When a conflict occurs
with other principles, does ownership carry the same weight at all points along the spectrum? So, if
one’s tools are interfered with in Forest Land, where mere property is the paradigm, is the pritnafa-
cie right as strong as if one’s land is interfered with where full-blooded ownership is the paradigm?
“2 The metaphor is mine. See supra note 7 at 232, for Harris’s careful caveats.
1998]
D. LAME-nI – PROPERTYAND (PERHAPS) JUSTICE
705
to have meant that property must be available to everyone, as Waldron asserts.'”
While Hegel’s property schema does appear to be more materially determined than
Harris concedes, Harris’s reading of Hegel is nevertheless more persuasive than Wal-
dron’s, which, I have argued, is too static in its view of Hegel’s “moments”.'”
However, Harris’s summation of Hegel’s argument is not unproblematic. It is de-
scribed as an argument from freedom, and my main concern is with the predominant
autonomy spin given to Hegelian property as a whole. The following passage in
Property and Justice is enlightening:
The argument from freedom to property runs as follows. If we take seriously
the concept of the free individual, the person capable of bearing rights, we must
necessarily recognize a sphere of meum and tuum, for in no other way can the
abstract person differentiate himself from the world and from other persons.
“The person must give himself an extemal sphere offreedom in order to have
being as Idea” We confront this philosophical truth with a historically-evolved
institution, property. That institution, in its modem guise of individual private
property, precisely matches the necessity for abstract freedom to be concretized
in an external sphere. It enables the abstractly free will to become actualized
through asserting exclusive possession over things, through making unlimited
use of things, and through alienating things to others. Its inherent choice-
facilitating role is thus the rationale of a property institution. “In relation to
needs –
the possession of property appears as
a means; but the true position is that, from the point of view of freedom, prop-
erty, as the first existence [Dasein] of freedom, is an essential end for itself’.”‘
if these are taken as primary –
Despite the initial caveats advising against being caught up in any one Hegelian
“moment”, it seems to me that Harris has in fact done just that by over-stressing one
aspect of the Hegelian process, namely “choice-facilitating”. In doing so, he has lost
the dynamism of Hegel’s process. Harris has reached a dead end. In my view, Hegel
cannot be read as saying that more choice is necessarily better. Choice, in this context,
is part of the individual’s progression towards not only freedom but ultimately Ethical
Life. As stated in the Addition: “The rational aspect of property is to be found not in
the satisfaction of needs but in the superseding of mere subjectivity of personality.”
Freedom is identical not with subjective ends, needs, and arbitrariness, which are the
subjective conditions of mere possession. Rather, freedom has an objective, non-
contingent –
teleological quality. The act of possession must be recog-
nized by others. So the importance of quality of choice is at least implicit through-
and hence –
‘ See supra note 3 at 380-8 1.
.. See Deon-Telos, supra note 12 at c. 4. This, in my view, is a product of Waldron’s attempt to pi-
geon-hole Hegel’s theory of property into the confines of a general rights-based theory. Hegel’s whole
body of thought in the Philosophy of Right is sui generis. It cannot be made to fit standard interpreta-
tions, mainly because of its developmental nature and the interconnectiveness of its assumptions.
While one can extract tendencies or general principles like “self-development through embodiment”
or “expressiveness” for application to modem society generally, it defies more precise classification.
’24 Supra note 7 at 234-35 quoting Hegel, supra note 100 at 73 (41) and 77(45) [footnotes omitted
and emphasis in original].
… Hegel, supra note 100 at 73 (41, Addition) [emphasis added].
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out.’26 For Hegel, it is not that any property choice is necessarily a good choice; fet-
ishism, for example, would not likely be allowed as it values an object completely
subjectively. This is clear in Hegel’s advancement of full-blooded ownership, at the
stage of Abstract Right. Harris seems aware that at the level of Abstract Right, both
the Will and full-blooded ownership are abstract; in their actualization, both will be
read down and limited by communitarian imperatives in the progression to a higher
stage.27
Yet in his own discussion of what the prima facie right entails, Harris seems to
cast the net of ownership as widely as possible. In his restatement of the Hegelian
schema, the conclusion seems to be that property freedoms writ large are inherently
justifiable.” This starting point is too strong, especially when one considers the scope
of actual private-property rights.
c. The scope of prima facie rights: mere property and
transmission
The problematic emphasis placed on autonomy in the above readings of justifica-
tion manifest themselves at this stage, where Harris begins to fill in the shell of his
primafacie property right. In his analysis, unless an anti-freedom property can be ad-
vanced, property freedom encapsulates three types of ownership freedoms: uses;
transmission powers; and independence from social control. The first two inhere in
the property institution; the third is instrumentally connected.
12. See ibid at 79 (49 and Addition); 81-82 (51 and Addition). One’s body, for example, as that
which is first possessed may nevertheless not be misused (ibid. at 79 (48 and Addition); 101 (70)).
27 Harris, supra note 7 at 235 [footnotes omitted], writes:
1
Only what we have called full-blooded ownership fits the freedom bill. For the ab-
stractly free will to be capable of appearing on the world stage as a fully rational will it
must be presented with an institution that makes possible exclusive, unlimited, and
transferable ownership.
That is Hegel’s diagnosis of the inherent freedom-conferring qualities of property in-
stitutions at the level of abstract right. But it is far from representing his final conclu-
sions about the justifiability of individual private property. Features of concretely just
property institutions need not reflect precisely the implications of full-blooded owner-
ship, once the “moment” of abstract right is subsumed within those of morality and
ethical life. So far as morality is concerned, “fe good” may require that starving indi-
viduals be licensed to commit what would, at the level of abstract right, amount to
theft. Within ethical life, family property may take precedence over individual private
property so that, for example, the right of free testation is appropriately restricted.
Within the State, political considerations warrant the permanent maintenance of an in-
dependent class of landed proprietors and that justifies restraints on alienation of land
which, in terms of abstract right, would not be permissible. Although individual private
property is “more rational” than any other form of property, the higher sphere of right
embodied in the State may justify corporate property and mortmain.
‘/bi
at 236.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
707
The first type of ownership freedom asserts that the prima facie shell includes
control powers over uses. This position is relatively unproblematic. Consistent with
what I have said above, these uses are inherent in the relationship we have with things.
I say “relatively” unproblematic because these powers are not unlimited; the social
aspect of property, governed by its deon-telos, means that unlimited use powers over
social wealth will rarely be attainable or justifiable. One might have full-blooded
ownership of trivial chattels, but most other objects of social wealth will be identified,
distributed and regulated according to the considerations I group under deon-telos.
Harris would go further, consistent with the primacy he gives to autonomous choice:
If a property institution exists in a society, then at least mere property over
some resources must be accorded to individuals or groups with the protection
of trespassory rules. Mere-property freedoms necessarily encompass an open-
ended set of use-privileges and control-powers. X is free to use and (at his
pleasure) to license others to use a picture, or a house, or a copyright if he has
any kind of ownership interest in it –
subject to any property-limitation rules
there may be.”‘
Harris’s “analytical truth” is that mere property freedoms are an open-ended set of
use-privileges and control powers. But this is not an analytical truth at all. The range
of uses that one has over any resource is determined by the social context, by com-
in short, by property’s deon-telos. The more important the re-
munal imperatives –
source, the more scarce, or the more directly its use will have an impact (especially if
negative) on others, the less open-ended the powers will be. One might have open-
ended use and control privileges over a chattel; but this does not mean the same ar-
gument would be extended in principle to land. In part, this error once again comes
from using the loaded term “ownership”; one’s entitlement may or may not include
some powers. Yet in Harris’s book, any point on the spectrum is “ownership” and is
vested with all the presumptions that the term implies. “Mere property” is the best
form of ownership one can have in many systems. But mainly it comes from the as-
that the quantity of choice is better than the
sumption –
quality of choice. Harris makes precisely this point as he moves from the above-
quoted passage to assume the truth of unlimited ownership rights ab initio and elevate
the assumption to the status of a justificatory argument:
and it is an assumption –
If that analytical truth should turn out also to be ajustificatory argument, it will
be of far wider application than any of the justice reasons considered under the
category of alleged natural property rights. For example, the freedoms thus
vouchsafed go beyond anything which would follow from the privacy argu-
ment. Ownership, purportedly justified by freedom, extends to things with
which the owner has no intimate connection. The underlying value is mere
choice, not specially protected choice.3″
So Harris has taken Hegel’s explicitly abstract argument and assumed its veracity in
the concrete.
‘” Ibid. at 238.
10Ibid.
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This leap cannot be justified. Indeed, Harris has not justified it. The necessary de-
gree of access to resources that a freedom argument will justify prima facie does not
entail any sort of unlimited ownership right in substance. This is most easily ex-
plained by the variety of non-private alternatives to property: common ownership;
quasi-ownership (crown corporations or other public agencies); or even direct state
ownership. Harris cannot meet this claim; rather, he is forced to turn to instrumental
arguments in an effort to assert an intrinsic superiority of mere property (ownership)
freedoms:
If mere-property freedoms are intrinsically valuable, it must be because they
contribute more to human well-being than do any of these variants of regimes
of communal use. If the argument from autonomous choice to ownership were
based solely on the notion of maximizing opportunities to make use of the ex-
ternal world it would clearly fall. Owners are armed with control-powers ena-
bling them to exclude others. It can hardly be supposed that they will inevitably
exercise them in such a way as to confer more use-opportunities than would re-
sult from any variety of communal use regime. From an abstract maximalizing
standpoint, communal use is preferable. However, that is not the burden of the
argument for mere-property freedoms. It has to do with channelling and polic-
ing uses which are potentially in conflict.”.
The efficiency and channelling reasons offered by Harris are in no way entailed
by ownership freedoms based on autonomy. Indeed, these instrumental considerations
are supposed to go towards filling the shell of the prima facie, natural right, to defin-
ing its scope and limitations, and not to the argument of its “naturalness” or justifica-
tion. Harris has had to resort to extrinsic, non-natural, and utilitarian factors to show
that private property is intrinsically superior to some other conception of property.
In short, if Harris is to remain true to his own argumentative structure, instru-
mental reasons like use-channelling and use-policing functions cannot be imported to
add substance to the argument for a prima facie right. Autonomy-driven freedom rea-
sons might justify the shell of a natural private-property right, as did personhood and
privacy of arguments. On the contrary, these instrumental reasons are often driven by
social convention and, as such, go to filling out the content of the right at the level of
institutional design.
Moreover, once instrumental concerns are included in the substantive delimitation
of property rights, one cannot choose to include only those aspects of the instrumental
calculus which tend to support private property freedoms; those delimiting aspects of
instrumental reasons which tend to illustrate property’s deon-telos, for example, larger
social goals like the channelling of resources, must also be included. If Harris resorts
to instrumental reasons to fill out his freedom argument, he must be prepared to dis-
cuss a wide variety of instrumental reasons which would serve to limit certain poten-
tial autonomous choices in the service of larger goals. Even with respect to chattels,
the argument that there is a prima facie full-blooded ownership right is too strong,
since the reliance on instrumental, use-channelling and use-policing functions of pri-
vate property to arrive at a full-blooded right means that any limiting aspects of use-
.. Ibid. at 239.
19981
D. LAMETTI – PROPERTY AND (PERHAPS) JUSTICE
channelling and use-policing cannot be left aside when importing instrumental rea-
sons into the mix of property-specific reasons.’32 If one held a scarce, unique and valu-
able chattel, use-channelling functions might be driven by social concerns serving so-
cietal goals, such that the full-blooded ownership of that type of chattel could never be
justified ab initio. Had it been known, Lady Churchill could have been compelled
indeed should have been compelled – not to destroy the portrait.’33
Put another way, Harris has assumed that the burden of proof lies with those
wanting to restrict private-property rights to show that the restriction is justified. But if
full-blooded ownership cannot be justified in theory without a resort to social conven-
tion (Harris admits this) and does not exist in practice (Harris admits this too), on
what grounds can one assume that the starting point for private property is unlimited
and that the burden of proof should be on those seeking to limit it? Similarly, how can
one assume that an entitlement entails powers not explicitly specified? It seems that
the opposite might be more plausible. Unless one can show that there is a natural right
to full-blooded ownership, one should have to justify full-blooded ownership ab ini-
tio, and not be allowed even the prima facie benefits of organizing one’s paradigm
around it. Historically and conceptually, one might plausibly assume that common
property is the norm, given Harris’s first assumption of presumptive equality in shar-
ing the earth’s resources, until proven otherwise. Indeed, this was perhaps the central
Thomistic insight on private property, and the motivating force behind property theory
from Thomas Aquinas to Hume, including Locke; originally all had a natural right to
property, and private property was but one way chosen by human beings, through
their reason and in harmony with Natural Law, of determining or specifying that
right.'” As was argued above, Harris has not made the case for the logical priority of
private property.
This overstatement on Harris’s part lies, I believe, in the characterization of
autonomy. To repeat: “The underlying value is mere choice, not specially protected
choice.”33 Harris has implied that the primafacie property institution serves not a so-
cial or communal purpose, but only the underlying value of quantitative autonomy.
Some specially-protected choice, however, is often what the moral discourse behind
private property will necessitate.
Once assumed, the consequences of this conclusion –
widespread rights possible under the prima facie private-property right –
tremely difficult to contain:
that one has the most
are ex-
Thus, we have an independent argument from freedom to property in respect of
things which are, conventionally, already the subject of ownership interests.
… See ibitL at 244-45, 250.
… Shortly after her death, it was discovered that Lady Churchill had destroyed a portrait of Sir
Winston given to him by the English nation: see ibid. at 66, n. 9.
“‘ See Thomas Aquinas, Sunma Theologiae, q. 94, a.5. On the threads running through the Natural
Law tradition of property, see generally S. Buckle, Natural Law and the Theory of Property: Grotius
to Hume (Oxford: Oxford University Press, 1991).
“‘ Supra note 7 at 238.
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Clothing, fumiture, books, gadgets, toys, vehicles, and many other chattels are
examples. One’s relationship to such things may in no sense be intimate, such
as to give rise to privacy considerations, let alone constitutive of personhood.
However, conferring (at least non-transferable) ownership privileges and pow-
ers over such things on individuals not only enlarges their domains of choice, it
also saves the community the cost of instituting and policing a regime of com-
munal use. Such a regime would multiply, for no good reason, the occasions on
which community agencies make decisions about the details of citizens’ ives.
It would absorb effort and resources which could be expended on other com-
munity projects which justice requires.
It follows that mere-property freedoms, in relation to such things, are of value
to the individual and to others and are therefore just.’36
According to Harris, then, private property necessarily should exist in any society
where there is any sort of scarcity; definitionally, this means any society where a
property institution exists.
Finally, an autonomy-driven view of ownership would also obscure the focus on
the objects of property, something which Penner implores us to consider in his analy-
sis. As autonomy focuses primarily, if not solely, on individual reasons for action, one
may lose sight of the intrinsic value which some item of social wealth might have, the
goals it might serve and the duties of stewardship or productive use that its owner
might attract. How does one rule out the wanton waste of a valuable resource, for ex-
ample? Lady Churchill’s actions are not justifiable on this account either.”‘
The impact of this interpretation of the autonomy interest is perhaps even more
pointed when one looks at the second type of ownership freedom, namely alienation
powers. Once set up, the autonomy-freedom argument necessarily justifies transmis-
sion, since a person’s choice to lend, license or give away by gift is as deserving of re-
spect as any other choice.” Choice then justifies the monetary equivalent of such so-
cial resources. If these types of transmission are possible, then prima facie, so is
transmission by contract and, through a similar extension, by will. It seems to me that
we have, without justification, gone beyond the uncontroversial starting point that
property rights involve some limited use and control privileges. We are now at a
starting point that assumes not only use privileges, but also relatively uncontroversial
transmission privileges such as gift and perhaps contract,’ 9 and even very controver-
sial exchange privileges such as inheritance.” The allocative impact of some of these
powers of transmission seems intuitively too strong and too enduring to grant them
inclusion primafacie in the shell of a property right. So transmission by will or intes-
13 Ibid at 241-42 [footnotes omitted].
‘I
think this is a critical point, and using Penner’s notion of an in rem property duty, I attempt to
elaborate its larger implications for the (moral) source of private property’s normativity in “Normativ-
ity”, supra note 13 and Deon-Telos, supra note 12 at c. 6.
‘ Contra Christman, supra note 3 at Part III, who does not include exchanges for consideration in
the core property right.
,3 Penner does not include contract: see supra note 8 at 91-92.
,, Most famously, see E-J. Proudhon, What is Property?, trans. D.R. Kelley & B.G. Smith (Cam-
bridge: Cambridge University Press, 1994) at 184-85.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
tate inheritance, for example, needs to be substantively justified not only in light of
their potential benefits to individual autonomy, but as against their negative impact on
equality of resources.”‘
I have argued above that even in Harris’s description of private property the prima
facie right is too strong.”2 This claim is now supported in theory; Harris’s prima facie
right is a strong, robust version of ownership entitlements which in some ways has
gone even further than Penner’s defined property right. In some cases, Harris’s right is
an explicit prima facie right to full-blooded ownership (chattels); in other cases, it in-
volves many or most of the rights traditionally associated with full-blooded owner-
ship. In all cases, the prima facie right is fortified by the pre-eminent weight given to
individual autonomy, and is defended by the preponderant rhetorical weight of private
ownership as a principle and an organizing idea. This serves to exclude most obliga-
tions as well as any social, non-individualized collective good which private property
might serve, or any role it might play in fostering that good. Framing the prima facie
right in this way explains the definitional tendency identified elsewhere, namely that
all rights (rights on the ownership spectrum and the trespassory rules which serve
them) are treated as intrinsic to the property institution, while all other concerns
(property-duty rules and expropriation rules, for example) are treated as extrinsic.”3
Given this structure, who needs the Aunt Sally of totality ownership? The champion
named “full-blooded ownership” is supposedly less strong, but virtually invincible.'”
d. Anti-property (freedom) arguments
Thankfully, some of the normative weight of Harris’s theoretical starting point is
lessened by the force of so-called anti-property arguments: limitations, fetishism,
wealth-disparity and domination potential. However, as was the case in Harris’s de-
scription of property-limitation rules and property-duty rules in Part I of Property and
Justice, the amount of possible weight that can be given to arguments limiting prop-
erty freedoms is hampered from the outset by their relegation to a secondary, extrinsic
status.
As a result, in Harris’s view, the freedom-based principle of ownership (as full-
blooded ownership) does not suffer from an inherent contradiction in allowing the
power to create, in perpetuity, lesser ownership entitlements (as less than full-blooded
“‘ Ironically, as we shall see shortly, privileging some types of transactional choices over others by
admitting and cohering to property’s deon-telos might very well make sense of these considerations,
and give some guidance as to the circumstance when alienation is an intrinsic part of the entitlement,
and when it is not.
“2 Supra note 69 and accompanying text. The fuller argument is contained in “Normativity”, supra
note 13.
” See ibid.
,,I have omitted Harris’s third ownership freedom –
as the
deon-telos analysis only adds the obvious corrective: one should view social control in a more posi-
tive context. Harris is already reasonable in this regard.
independence from social control –
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ownership)”5 which do not possess the same powers as full-blooded ownership. After
all, full-blooded ownership is only a prima facie right and, as was mentioned above,
the common lawyer has the advantage of being able to attach the ownership label to
any narrow or wide agglomeration of rights. But in my view, this argument is uncon-
vincing. Not only is it weakened by building as it does on loose usage of the word
“ownership”; it also rests on a series of argumentative steps that use only individual-
istic, instrumental arguments to justify a natural right. As argued above, more so-
cially-oriented instrumental views need be accounted for. Most important, Harris’s ar-
gument on creating lesser ownership entitlements fails to address the essential logical
and moral questions: can one “owner” create perpetual restrictions on some object of
property once one has completely alienated it to another owner of the same status?
Can such a power ever be justified? Harris seems to argue that this power is justified
simply because it forms part of the prima facie right, and legal systems allow one to
exercise it.” One would think that Harris’s primafacie right should not include a right
which so blatantly contravenes his first minimal principle of justice. But such is the
force of an individualistic autonomy view which eschews distinguishing the values
promoted by competing choices.
Only domination-potential –
the idea that private property accords social power
to individuals, and thus accumulations of private property in the hands of the few
should be avoided –
seems to retain some measure of force as an anti-property ar-
gument in Harris’s conclusions.” Other anti-property arguments are not so successful.
Wealth-disparities and the principled re-allocation of resources cannot take away from
the prima facie right to transmit property rights to others, in effect because the prima
facie right is so strong. Even Rawls’ minimax principles of justice are ruled out be-
cause Rawls includes private property as a basic right.”‘ However, it is quite plausible
to interpret a right to personal property as something far less than full-blooded owner-
ship over a wide variety of resources in a private property system. Indeed, this has
been the case throughout most of the Western property tradition.”‘ Harris’s blanket in-
clusion of transmission rights is, after all, based on an unconvincing argument.” It
“5 The contradiction was identified by Hegel, and recast by Charles Donahue: see Hegel, supra note
100 at 90; C. Donahue, Jr., ‘The Future of the Concept of Property Predicted from its Past” in Nomnos
XXII, supra note 4, 28 at 33-34. See also Harris, supra note 7 at 253-55.
l” See supra note 7 at 255.
” Harris’s contrast of the merely “potential” negative effects of domination resulting from property
power to the necessarily positive effects of affording more choice is illuminating. This is a false con-
trast in my view: both the positive and negative effects of any choice or any limit is a potential effect.
It is unfair to assume that the positive impact of allowing human choice with respect to resources are
actual, while the negative impact of domination potential is only potential: see ibid. at 265.
‘” See ibid at 259. In fact, Rawls used the term “personal property”: see Rawls, supra note 16 at 61.
Harris’s inflation of that term to what amounts to full-blooded ownership across the board is question-
able, at best.
” The Natural Law tradition held that property was given in common to all human beings, and that
private property was a human specification of this natural right held by all: see supra note 134 and
accompanying text.
‘” Christman’s argument, supra note 3 at 127-35, is much more plausible, in my view. Christman
argues that all alienation and transfer rights are not necessarily part of private-property rights. Control
1998]
D. LAMETTI – PROPERTY AND (PERHAPS) JUSTICE
713
does not suffice to say that since any type of property entitlement will create wealth
disparities, these disparities should not have any part in the institutional design re-
specting transmission limits. Finally, fetishism, according to Harris, cannot play any
role in institutional design since any individual choice is as good as any other.
Perhaps fetishism is not so grave a problem to property systems, and can remain
within the range of acceptable autonomous choices. (I do, after all, like my books and
CDs, and they do contribute to my sense of well-being.) But when even such powerful
arguments as wealth-disparity do not pass muster except under very limited circum-
stances, one suspects that something has altered the balancing process in favour of
private-property arguments. The critical point again is the weight given to any
autonomous choice, and the illegitimate extension of that natural right (via instru-
mental arguments) to property transmission. A society is served by the private prop-
erty institution, and its imperatives must be included, intrinsically, in that institution’s
justifications and features. Anti-property arguments –
including arguments to pre-
vent the more odious consequences of some types of fetishism –
are not, in this view,
a secondary category of ex post facto limits, but part and parcel of the property insti-
tution; they are property arguments.
3.
Instrumental justifications
Harris’s third group of property-specific justifications revolves around the instru-
mental justifications for private property. In his analysis, these types of reasons con-
tribute towards structure and design. He groups them into four categories: direct jus-
tice costs; indirect justice costs to cover basic individual needs; incentive arguments;
and independence-fostering instrumental arguments. Once again, Harris’s focus is on
the fostering of individual choices.
This whole category of argument is downplayed unduly by the individual, auton-
omy-based nature of the minimal assumptions. There is a more robust reading of in-
strumental, one might say “teleological”, reasons for private property which help fos-
ter societal goals. Aspects of this teleology are seen in previous critiques of Harris’s
use of Hegel, as well as Harris’s articulation of personhood-constituting arguments.
From a moral functionalist perspective, instrumental arguments might enable private
property to further the goal of good social ordering. They might even help discern
which types of autonomous individual choice might be promoted, or in some cases
prohibited. On such a reading, then, instrumental arguments go not only to institu-
tional design, but also to the substance of the property right. If one takes property’s
deon-telos into account, the societal aspects of instrumental justifications are much
more difficult to play down.
It is useful to recall that Harris does use instrumental arguments substantively in
support of his freedom argument, filling out its shell. While I am critical of this move
on Harris’s terms, nothing precludes the substantive use of instrumental reasons. Like
use, possession, management and unilateral alienation –
are more basic than income rights
including market exchange. See also Penner, supra note 8 at 153ff., who draws a distinction, im-
rights –
–
plausible in my view, between unilateral alienetic gifts and other exchanges.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 43
other parts of the discourse of justification, all such determinations will involve a bal-
ancing of rights and deon-telos, and will take place against a backdrop of larger moral
claims about justice. Harris has most of the component parts and processes of the dis-
course right; he neglects only the additional perspective that is afforded by the lens of
deon-telos.
a. Direct and indirect justice costs
Direct justice costs flow from the bodily integrity principle and consist of strong
rules protecting against invasions of one’s body and closely-held property. Such costs
are exemplified by criminal law provisions and other imperative rules. Indirect justice
costs, on the other hand, are those necessitated by the requirement that the property
institution be used to meet the basic needs of individuals. Once again, Harris catego-
rizes these costs as those which are necessary to facilitate the autonomous choice of
individuals.
Both of these categories, in Harris’s taxonomy, revolve around the individual. In
my view, this is too narrow. There is a good to be protected by the criminal law –
peace and order –
that does not cash out only at the level of individuals. Similarly,
with respect to indirect justice costs, not all choices people can make will facilitate
their basic needs – material or immaterial. Any society’s definition of its basic needs
will be partly contingent, as Harris points out.”‘ But this is no reason to avoid defining
basic needs, or to characterize them only in terms of individual autonomy. Rather,
some idea of the instrumental value of fostering certain societal goals will be abso-
lutely crucial to the justification and design of the property institution.
includes the two
Therefore, this category
instrumental justifications, use-
channelling and use-policing functions, identified above in the discussion of freedom.
As I have argued, while these two justifications are in part individualistic, primarily in
the service of fostering individual autonomy, they are also social in part, going to the
service of societal goals. In this function they encapsulate the notion of basic needs
and the goods property is meant to serve, as well as the most effective or efficient way
to allocate resources and to design and protect property rules. The same is true for
other instrumental arguments.
Thus, in large measure, these instrumental arguments will be subservient not only
to individualistic arguments but also to social convention. For example, equally effi-
cient and effective modes of protecting similar individual and social goods might be
different in different societies merely because of social convention. More likely, social
convention will infiltrate all instrumental arguments.
b.
Incentive arguments
Incentive arguments are those which provide a justification for property rules to
be used in the service of channelling and inducing certain forms of property-related
‘ See supra note 7 at 285-87.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
715
behaviour. Creator incentives and market freedoms are treated in a balanced and co-
herent fashion, recognizing their role in society and the contingencies to which they
are subjected. On markets, Harris points out that these instruments presuppose a dis-
tribution of wealth which they cannot justify. One is reminded of the fundamental
point famously made by Karl Polanyi: markets are not a naturally occurring phe-
nomenon, but are created by human decisions.”‘ It is an analogy one should always
bear in mind with respect to property. That is, the societal value of the property insti-
tution and the explicit goals it can serve –
distributional and productive goals, for in-
stance –
cannot be ignored. We create private property institutions in service of a va-
riety of fundamental, though perhaps lower-level, goods (creator-incentive, for exam-
ple) for both individuals and society, and we design such institutions using the tools (a
market, for example) which will best serve these goals. This discourse is presupposed
by property’s deon-telos, and the study of these processes illuminates it. In practice,
these instrumental considerations will play an extremely important role in filling out
the contours of property institutions.
c.
Independence
The independence argument comes from the idea manifested in historical argu-
ments that having private property creates some space for individual development or
citizen independence. Harris recognizes the role property has played in some histori-
cal arguments, and notes its continued, if diminished, importance.
Consistent with the substance and tenor of my critique thus far, one must keep in
mind that a number of social values are also facilitated by these independence-
protecting property rules. Metaphorically, one should consider the historical, republi-
can view that individual rights can only flourish after one has secured the safety and
independence of the (city) state from external forces. This security then provides the
space for the cultivation of individual rights, including property rights.” This meta-
phor is reminiscent of the idea that a person’s rights do not precede, but are coinci-
dental with, the existence of the community. Thus, property does not exist on a desert
island, there being neither the context nor the need. This insight cuts across the whole
of my analysis.
d. Societal Goals?
The following critique shall be developed over the next section: the assessment of
the arguments for private property and the design of its institutions must take social
goals and imperatives explicitly into account. This will be most visible in instrumental
arguments and in social convention, but it is also present, as argued above, in the indi-
vidual-oriented arguments presented by Harris.
“‘ K. Polanyi, The Great Transformation (Boston: Beacon Press, 1957) at 139-41.
153 See, most persuasively, the work of intellectual historian Quentin Skinner. His most recent, and
perhaps most accessible, work in this theme is Liberty Before Liberalism (Cambridge: Cambridge
University Press, 1997).
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[Vol. 43
One must also ask if there are certain types of instrumental arguments which have
not been considered. Specifically, are instrumental arguments grounded in societal
goods ruled out at the outset by Harris’s initial assumptions? ‘This would appear to be
the case. Harris uses instrumental values in the service of very individualized goals.
But society also attains a synergistic benefit from well-ordered institutions, from the
collective product of individuals making good choices and developing their morals
and talents. This benefit is more than the summing of individual benefits. Indeed, so-
ciety has a responsibility to try to foster such goods, and property law is but one way.
It is here that the force of the communitarian critique gathers its full strength. Even
autonomy is contextual, in this sense, and the community has a responsibility to try to
channel autonomous decision-making towards the collective good. Property discourse
and institutions are a necessary part of this moral, deontological exercise.
4. Equality of resources and social convention
Finally, Harris deals with the other two large principles which have the potential
to dominate property discourse: equality of resources and social convention. Recall
that along with natural-rights arguments, these two categories of argument were ini-
tially cast as the three grand theories.'”‘ As a result of his analysis thus far, Harris has
formally discounted any natural rights to full-blooded ownership. Nevertheless, Har-
ris’s various assumptions have informally given a substance to the shell of prima facie
natural rights which is nearly as powerful as full-blooded ownership. In light of this, it
is hardly surprising that while both equality of resources and social convention may
play a role in justifying property, neither works as a dominating principle for Harris. ”
a. Equality
In Harris’s view, equality of resources operates effectively as a threshold issue in
justifying private property. Once a threshold is reached, allowing us to say the distri-
bution of the quantity and quality of resources is just or adequate to meet basic needs,
then distributive issues no longer play a role in justificatory discourse or institutional
design.’ 6 In light of what was said above, this view cannot be maintained over the
long term unless the calculation of the threshold level of acceptability takes into ac-
count individual and societal needs. In particular, the threshold test must be continu-
ally reapplied, as property distribution changes over time. Moreover, one must con-
sider which objects of property will be distributed to whom. Thus, for example, pri-
vate-property rights should not have been sufficiently strong to justify absentee land-
” One might speculate on the impact of concentrating the vast bulk of middle-level argument on
the elucidation of whether natural-rights arguments to private property are persuasive, while dedicat-
ing only a comparatively small portion of the monograph to these other categories of argument. Even
with the best intentions, one might argue, it is impossible not to get caught by the overwhelming force
of rights discourse. I warned against such a possibility earlier at supra note 17.
‘s’ See supra note 7 at 330-31.
156 The only exception is windfall wealth where equality of resources, according to Harris, is a
sound property-specific justice reason: see ibid. at 314.
1998]
D. LAMETI – PROPERTY AND (PERHAPS) JUSTICE
717
lords in Prince Edward Island if such a distribution causes social injustice to the resi-
dents of the island. Perhaps at some point in the future, our society will question the
distribution of certain resources –
and its impact on
equality.
say microchip technology –
b. Social convention
It should already be clear from the arguments thus far that social convention plays
a critical role in justifying property and giving it its form. Even for Harris, social con-
vention performs this latter role in conjunction with instrumental arguments. But this
statement must be more strongly framed. Social convention not only colours the iden-
tification and weighing of justifying arguments for property institutions; it also plays a
direct, substantive role in determining the shape of property institutions themselves,
private or otherwise. While social convention may not be completely determinative of
or coterminous with the Good, it does play a integral role in determining which goods
should be promoted over others, and how such promotions should take place. Indeed,
if natural law scholarship is correct in saying that there are no natural rights to private
property but only to property generally (elements of Harris’s analysis are not neces-
sarily inconsistent with .this view), then it is social convention and instrumental argu-
ments that have moved Western society towards adopting private property over other,
competing conceptions of property.
C. The (Unbearable) “Weightiness” of Being Rights-Based
Thus concludes the thumbnail sketch of Harris’s property-specific justifications of
private property; their organization and force, along with an indication of how an ap-
preciation of property’s deontological and teleological imperatives might influence
specific justice arguments and justifications. In subjecting Harris’s arguments on jus-
tice to the requirements of deon-telos and identifying some of the assumptions upon
which his structure is predicated, I hope that this review article has put into focus the
following specific critique of his work: too much attention is paid to rights-based
factors and little or none given to duty- and goal-based arguments. Thus, social con-
vention, for example, is not weighted heavily enough, especially in light of Harris’s
conclusions on full-blooded ownership and on the role that scarcity plays. Autonomy-
freedom arguments are confined to providing quantitative instead of qualitative choice
to individuals and the consequences of this approach are unduly emphasized through-
out the arguments of justification. Moreover, they are selectively assisted by instru-
mental arguments to give them certain powers of transmissibility over objects. By
framing the whole discourse in terms of how it justifies property rights, and by basing
those rights on what is, for the most part, an autonomy-based view of justice, Harris
loses sight of a whole category of justification.
These specific points can be brought together by showing that, at the level of so-
called grand theory, Harris is a rights-based theorist. This can be done by examining
Harris’s conclusions and assumptions at a deeper level, and it is to this last, global is-
sue that I now turn.
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1. Harris’s conclusions
Harris offers his own summary conclusion as follows:
Beginning with our minimalist conception of justice which did not include
property, we have reached the conclusion that total abolition of property would
treat everyone unjustly. There is a moral background right vested in each citi-
zen of a modem society that a property institution of some kind must be main-
tained.
It has emerged, however, that it is not every variety of property institution
which will satisfy this background right. It must incorporate certain features,
and justice requires that any actual institution which does not incorporate them
should be altered so that it does.
Most importantly … the social setting of the property institution must be such
that the community shoulders the obligation to meet the basic needs of all citi-
zens. The discharge of that obligation may have implications which have
nothing to do with property, but it may also entail some particular requirements
of property-institutional design –
including expropriatory taxing rules, appro-
priation rules where discharge of basic needs itself requires conferring property,
and quasi-ownership holdings by public agencies.
The property-freedom argument and the various instrumental arguments com-
bine to make money and cashable rights indispensable features of a property
institution. The same is true of full-blooded ownership of chattels. All dwell-
ings must be the subject of ownership interests, the point on the ownership
spectrum to be determined according to a mix of property-specific justice rea-
sons – which includes the shell of a natural right to privacy, domination-
potential in the case of family units, and incentive and market-instrumental
considerations. The use-channelling and use-policing merits of property insti-
tutions, dangers of domination-potential, and market-instrumental and incen-
tive considerations must all be taken into account on any question whether a
major enterprise should be the subject of a (packaged) ownership or (packaged)
quasi-ownership interest. Ownership interests over intellectual property should
be recognized because, and only to the extent that, they have incentive and
market-instrumental value, save where conventional assumptions about labour-
desert have crystallized around them.
Irrespective of distribution, all property freedoms are prima facie valuable,
none are sacrosanct.’ 7
So, on their face, Harris’s conclusions lead quite reasonably to a plural justification of
property rights. That is, various justifications might apply in different circumstances
and no one justification is sufficient. A number of property-specific justice reasons
may work in concert to justify the shell of a property right or the substance of specific
property norms and their institutional design.”‘ Moreover, consistent with the larger
1 Ibid. at 305-06.
Harris writes:
In the end, we are left with a mix of property-specific justice reasons –
property free-
doms, labour-desert, privacy, incentives and markets, independence, and basic needs.
None of these imports precise, context-free considerations, and their mix can do no
1998]
D. LAMETI – PROPERTYAND (PERHAPS) JUSTICE
underlying themes of this critique, it appears that the types of property rights that can
be justified are limited; “mere property” usually suffices to fill out the shell of any
natural-rights argument, for instance, while transmission rights are harder to justify,
even using the classic arguments used in everyday discourse such as personality, first
acquisition or privacy. Finally, in practice, the functional role of convention is quite
strong, even if not considered by Harris to be a dominating condition.
Nevertheless, at the level of Harris’s assumptions, it was suggested above that
there is an individualist orientation running through the substance of many of the ar-
guments. Thus, while there are no natural full-blooded property rights, there is a
weighty moral claim –
to some pri-
vate property institution. Harris has defined the functional substance of the prima fa-
cie right broadly, allowing it to dominate and at times overwhelm other factors that
might restrict the scope of rights in theory. I hope this review article has raised suffi-
cient doubts about Harris’s underlying emphasis on individual autonomy to warrant
the broader-based critique that follows.
indeed, a very strong primafacie moral right –
2. A rights-based argument
To a certain extent, recourse to a master-vision of property is inevitable at the
widest level of social theory. Recall that Harris admits that the more general the justi-
fication for private property, the more moral it becomes. The same is also implicit in
Lawrence Becker’s analysis of property justification. ‘ Harris, while admitting this to
be the case, claims that he does not want to become involved in the articulation of a
master vision or grand theory. Rather, he tries to elaborate a middle-level argument of
property-specific justification. Earlier critiques of Harris’s arguments have shown the
difficulties encountered in such an approach, given the necessarily social aspect of
private property.
In addition, as the structure and substance of Harris’s argument clearly shows, the
backdrop of private property involves moral questions. In Harris’s case, this moral
backdrop is coloured by the three minimal assumptions about property-specific jus-
tice. A re-examination of the role Harris gives to those principles, coupled with the
substance of how they are applied, shows that his argument is indeed based on a
master vision.
a. A master vision
In the very widest sense, a master vision is present from the outset of Part II of
Property and Justice. As Harris admits, he does not start off with a clean slate; the
more than structure our answers to general or specific problems. On the contested
planes of politics or adjudication, there can be no such thing as judgement-free deter-
minacy. In any case, property questions are inseparably affected by the social setting in
which a property institution exists (ibid at 365).
“‘ See L.C. Becker, ‘The Moral Basis of Property Rights” in Nomos XX11, supra note 4 at 187. See
also Becker, supra note 3.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
property institution must serve the interests of justice, minimally conceived. Recall
that three minimal criteria of property-specific justice –
the natural equality of hu-
man beings, autonomy and bodily integrity –
are postulated. In this articulation of
minimal conditions of justice for the purposes of assessing property, I submit that
Harris is presuming a teleology for property; the institution is placed in the service of
a vision of human justice, the human good, as Harris conceives it in his initial as-
sumptions. Once a telos is postulated, one can no longer return to a middle level of
argument, if indeed such an intermediary level ever existed. The conditions of prop-
erty-specific justice reasons are fundamentally tied to larger, necessary questions of
social ordering. To this extent, the structure of Harris’s argument may very well prove
that some larger moral vision is necessary for understanding property rights.
What is the content of this vision and how does it cash out? The answer, as was
pointed out above in the course of describing Harris’s argument, is an overarching
theory of individual autonomy, and specifically, a picture of individual autonomy that
is classically liberal, where no particular choice is to be valued over any other.'” Since
the protection of autonomous choice forms the basis of the “interest theory” posited
by Harris,” autonomous choice forms the basis for property rights. It is, in short, a
rights-based argument.
Harris’s rights-based view is premised on his very specific spin on justice argu-
ments: the minimal justice requirement and its emphasis on autonomy. Instead of
framing the minimal conditions of justice in neutral, non-controversial terms, Harris
identifies these criteria and the mode of applying them in a rights-based view of pri-
vate property. This contextual framework is by no means neutral or uncontroversial,
even if much of Western society adheres to some version of a rights-based view. Only
by importing this view into his analysis does Harris eventually arrive at his stronger
claim, namely that there is a moral right to private property.
These assumptions and arguments put him squarely in line with other rights-
based property theorists like Penner and Waldron, even if he is not as extreme as the
former. Nevertheless, having left the door open for duty-based and goal-based consid-
erations, and having implicitly used these elements throughout his analysis, Harris
creates a theory which is much less rights-based than Penner’s, and perhaps the theo-
ries of others as well.’ 2 Moreover, I would argue that the theory as structured can be
more easily re-directed towards greater inclusiveness.
The tendencies built into Harris’s foundational assumptions lead him to attribute a
normative force to ownership as an organizing principle and colour his subsequent ar-
ticulation of property rights. This skews his relatively uncontroversial starting point
towards the rights-based side of the equation, affecting both the justifications for the
institution of private property generally, and the design ultimately chosen. As a result,
property’s deon-telos is downplayed, both in theory and in practice. People exercise
“0 See supra notes 130 and 135 and accompanying text.
262 See supra note 7 at 170-71.
2 I am thinking of Waldron’s articulation of a rights-based argument in supra note 3 as well as
Munzer’s theory in supra note 3.
1998]
D. LAMETTI – PROPERTYAND (PERHAPS) JUSTICE
their property rights and responsibilities in context. This context is necessarily social.
As such, autonomy is contextual, and any autonomy-based justification must reflect
the societal context. In doing so, it will try to balance, or perhaps unite, the Good and
the Right. This critique, therefore, draws some inspiration from similar critiques of
other liberal theorists.’6 3
b. A rights-based vision
The step down from grand theory to middle-range, practical or applied theory
may be necessary in order to define the specific contours of just property institutions.
One cannot, however, escape the assumptions one has made about property and jus-
tice at a higher level.
Harris classifies private-property rights as follows near the outset of Part II of
Property and Justice:
[In Part I of Property and Justice), we considered that juristic tradition, largely
inspired by Hohfeld, which seeks to unpack property conceptions. We con-
cluded that references to the ‘rights of ownership’ might point either to the
privileges and powers which are intrinsic to ownership interests, or to those
privileges and powers together with particular sets of claim-rights and immuni-
ties conferred by the rules of a property institution to protect ownership inter-
ests. These are categories of rights internal to property institutions. If, however,
arguments based on property-specific justice reasons yield the conclusion that
people have moral rights to property, these are rights external to any particular
property institution and, on the face of it, ‘right’ is being used in a different
sense. Without entering into the philosophical and jurisprudential controversy
which surrounds the concept of ‘a right’, some clarificatory distinctions are
warranted.
A property right may signify:
(1) one of the open-ended set of privileges or powers entailed by a particu-
lar conception of an ownership or quasi-ownership interest;
(2) a claim-right, privilege, power, or immunity comprised by, or contained
within, a non-ownership proprietary interest;
(3) a right correlative to the duty imposed by a trespassory rule;
(4) an immunity-right which is the resultant of exceptions to, or absence of,
expropriation rules;
(5) a right conferred by an appropriation rule to be vested with an owner-
ship or quasi-ownership interest or a non-ownership proprietary interest;
(6) the moral standing to claim that a person or group ought to be vested
with an ownership or quasi-ownership interest or a non-ownership pro-
prietary interest over some specific resource;
‘ See e.g. the critique of Rawls’A Theory of Justice by Sandel, supra note 16.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
(7) the moral standing of a person or group to insist that a property institu-
tion (of some kind) be in place in a particular society.'”
their “pride of place”, in Dworkin’s terms”5 –
These passages show clearly that, in Harris’s view, the private property institution is
framed in terms of rights; these are Hohfeldian and moral claims, which have their
ultimate basis –
in individual choice.
The Hohfeldian rights (1-5) are powers vested in the individual. The moral claims (6-
7), which are internal to property in a way other moral claims are not, are also indi-
vidually determined. But the rights-based view is more than the mode in which the
argument is framed; it is also the substance of claims 6 and 7, which do not have a
true Hohfeldian correlative. Thus, claims of duty derived from social claims about
how property should be used (based on the goals and functions private property has in
a particular society) are excluded from this taxonomy. In articulating a version of the
interest theory, which seems to include a wider variety of interests than just individual
ones, Harris has nevertheless shut out any possibility for anything other than individ-
ual-rights claims, legal or moral.
Thus, the structure of Harris’s argument reveals that he presumes the teleology as-
sociated with the primacy of individual rights. That is, society’s primary goal would
be the protection and promotion of individual rights and freedoms: the protection of
the trump-value of rights. This teleology is implicitly present in Harris’s structure,
even if he does not formally acknowledge it. This teleology should be balanced by
some notion of communal flourishing, or even that a version of Penner’s inchoate so-
cial function of property be incorporated into Harris’s justificatory structure. This will
have an impact on institutional design; that is, the justifications will have a specific
impact on the manifestation of property institutions.
How might these problems of assessing normative force be illustrated in Property
and Justice? On the theoretical level, it has been argued above that Harris’s rights-
based view or master-vision is manifested in the omnipresence of a robust idea of full-
blooded ownership approaching the mythical notion of totality ownership. Yet the
concept itself cannot be justified by any natural-rights argument, nor does any instru-
mental argument give it unqualified support. Thus, one would think that a pritmafacie
right, which in effect approaches full-blooded ownership, should not be assumed in
all circumstances. If one takes to heart the above critique, the conclusion must be that
(avoiding the use of the word “ownership”) some property entitlements are prima fa-
cie valuable. None are sacrosanct. All need to be justified in their societal context and
with full regard for property’s deon-telos. Rights, goals and duties all take their nor-
mative place in this justificatory dialogue. This follows from the admission that in any
discussion of autonomy one must accept that only some choices are prima facie valu-
able. Hence, one must be careful not to overemphasize the ultimate justificatory force
given to these individual, autonomy-based freedoms. Perhaps the right should be con-
sidered to be excluded until justified if it is not explicitly included in the property en-
titlement. If totality ownership is really a straw man or an Aunt Sally, why ever resort
“‘ Supra note 7 at 169.
6 5 See Dworkin, supra note 14 at 170-71.
1
1998]
D. LAMETTI – PROPERTY AND (PERHAPS) JUSTICE
723
to either, even indirectly as Harris does? Rather, one should break down the package
of common property rights and powers into certain primafacie rights like possession,
use, and alienation, without positing them as a package or a unified whole.
One can see an impact of this analysis on Harris’s ultimate conclusions as to the
justificatory weight accorded to specific justifications. If social development also were
taken into greater account by Harris, perhaps labour-desert and personhood arguments
would gain strength. Privacy arguments, essentially negative, would remain the same.
Decreasing the emphasis on autonomy arguments would also reduce the preponderant
weight given to freedom arguments. The normative arguments in chapters 13 and 14
would be reversed in thrust with a more serious inclusion of anti-property arguments
in the discourse of justification and design, like the inclusion of anti-fetishism in in-
stitutional design. Moreover, the arguments of chapter 17, “The Limits of Property”,
would amount to more than a “what-is-property” analysis. Rather, such an analysis
would go to the identification of the intrinsic limits of the property relationship.
Regarding institutional design, the impact of the foregoing analysis might be
elaborated by using the example identified above (the impact of using rights-based as-
sumptions) as the starting point. This example revolves around the inclusion of trans-
mission and alienation rights in the prima facie ownership rights one has. In Harris’s
view, transmission rights are a point of discontinuity on the ownership spectrum; to-
ward the end of the spectrum where one finds full-blooded ownership, these rights are
part of ownership but at the opposite end, where one finds mere property, they are not.
In terms of justification, transmission rights in all forms are included in the natural
prima facie ownership rights any society should have. Christman, whose starting
point is different, recognizing the limits of ownership, does not include all types of
transfer in ownership.'” Even Penner, whose starting assumptions are generally simi-
lar to Harris’s, excludes contract from property rights.”‘
These differing viewpoints are evidence that transmission rights require additional
or different types of justification, perhaps of a different nature (instrumental as op-
posed to personhood-constituting). Their justification should perhaps be more specifi-
cally tied to the type of resource or even the resource itself (chattels over land, a
unique microchip processor), and more restricted and less pervasive (only in circum-
stances where the chattel is not scarce or valuable). In comparison, another property
entitlement –
like use rights over resources, more linked to survival or freedom-
autonomy – might be narrower in terms of its uses but more utterly unrestrictable.
As Harris admits, one can go too far with freedom-based arguments. Harris him-
self criticizes those commentators who believe property is straightforwardly justifi-
able because of the freedom it gives to the holder.”‘ Penner is likely in this category of
theorists too, given his statement that it is “well nigh indisputable” that property is
‘ See Christman, supra note 3 at c. 1, 2, where he distinguishes “primary functional control rights”
from “income rights”, and describes them.
67 See supra note 8 at 75, 84-85.
,” See Coval, Smith & Coval, supra note 112.
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justified.”” Harris consciously tries to avoid such extremes, attempting to leave con-
ceptual space for communitarian critiques. As indicated by the concluding passage
from Harris reproduced above,’0 he seeks a balanced approach.”
In spite of Harris’s best efforts, however, he does not succeed in maintaining this
balance. His argument is still too strongly framed in terms of rights, too pervasively
influenced by the rhetorical and linguistic force of ownership, and too specifically
grounded in the individual’s stake in promoting autonomy. Harris needs to balance
individual rights with duties and goals –
property’s deon-telos. He must reduce the
scope of the concept of ownership in theory, and the power of the word itself in prac-
tice. He must also recognize the wider, societal imperatives entailed in the identifica-
tion, distribution and regulation of social wealth.
Harris concludes that “one cannot confront ‘ownership’, at an abstract level, with
any plausible argument which entails that some particular category of privilege or
power should be excluded from the concept.’ 2 An abstract argument for full-blooded
ownership cannot be made. Given the asymmetry of property, its mediating role in
human relationships, and its allocative impact, the institution is necessarily social. So
one must look at the context. At a symbolic level, one needs to discontinue the use of
the word “ownership” as an interchangeable synonym for “property entitlement”, and
jettison the theoretical baggage that goes along with it.
In conclusion, Harris presents a rights-based argument which focuses on the full-
est expression of property powers. His minimal assumptions give primacy to individ-
ual autonomy and freedom, regardless of the choices that are actually made. This falls
into line with classical liberalism, and the priority of the Right over the Good. Struc-
turally, the second criterion of autonomy appears to do the greatest amount of work
throughout the justifications. This explains the discussion of ownership as an organ-
izing principle, and the frequent recourse to full-blooded ownership as a paradigmatic
concept. While in principle, only a prima facie right to full-blooded ownership is ar-
ticulated, the right is substantively unlimited, approximating full-blooded ownership,
and a necessary manifestation of a just society. Hence in the abstract, property rights
are virtually unlimited. Any limits on the primafacie right will be imposed extrinsi-
cally, with the burden placed on society to justify the limit. So, even though Harris
ostensibly wishes to leave open the possibility of “more plausible ‘communitarian'””
views of the person in society, he cannot succeed. By placing so much stress on indi-
vidual autonomy without ordering or limiting the goods individuals might choose,
and by failing to hold the individual to any responsibilities as pre-conditions to the
enjoyment of property rights, he in fact precludes the possibility of anything but a lib-
eral, rights-based view. Harris’s stated goal needs to be harmonized with his working
69 See supra note 35 and accompanying text.
‘
0 See supra note 157 and accompanying text.
‘~
‘ See supra note 7 at 23 1.
‘.. Ibid. at 275.
‘ See ibid at 173.
1998]
D. LAMEITI – PROPERTY AND (PERHAPS) JUSTICE
assumptions and their formal and substantive manifestations in theory and practice.
To put it colloquially, one has to “walk the walk” as well as “talk the talk”
These presuppositions colour what is otherwise a very careful and complete
structural analysis. By introducing the imperatives of deon-telos to Harris’s starting
point and assumptions, one allows the possibility of a more truly pluralistic picture of
property’s specific justifications. The various justifications could then be reconsidered
and rebalanced in a coherent manner, as illustrated in my specific comments on Har-
ris’s four categories of argument. Finally, if one were to apply these correctives to the
descriptive elements of Part I of Property and Justice, one should discard full-blooded
ownership as a spectral point or a paradigmatic organizing concept. Thus, the range of
property entitlements does not include any sort of full-blooded ownership. Moreover,
the rhetorical force of ownership as an organizing idea or as a principle needs to be
diminished. Ownership needs to be read narrowly as a concept. It must be separated
from private property, and seen as one limited mode of relating to resources.
IV. Conclusions: The Inadequacy of Rights-Based Justifications
Property and Justice and The Idea of Property in Law make important contribu-
tions to private property theory in each of its two polar discourses. In Normativity, it is
argued that both books make substantial contributions to the second axiomatic in-
quiry: the attempt to describe and define private property. I have argued in this review
article that such is also the case with respect to the first axiomatic inquiry –
the
analysis of the justice and justification of private property – most importantly and
most explicitly in the case of Harris, but indirectly and no less importantly in the case
of Penner.
Both Harris and Penner are, in differing degrees, rights-based theorists. This con-
clusion is based on a study of the assumptions and arguments they make regarding the
justifications and description of private property.” The impact of this starting premise
on the superstructural substantive work of each writer differs according to the degree
to which each is a rights-based theorist.
Penner, by being so forcefully and firmly rights-based, dispenses altogether with
the traditional compulsion to justify property. His definition of property treats owner-
ship as paradigmatic to private property. Effectively equating by definition private
property and ownership, he assumes its justification to be “well-nigh” obvious. As
Harris carefully proves, private property is distributionally controversial and by no
means naturally justified. It is only with great analytic care that the institution can be
defended and its contours articulated. Harris, as well as Munzer and Waldron, indi-
rectly show the pluralistic nature of property justifications. Furthermore, as Christman
has argued, Penner’s strong equating of property with ownership, apparently “full-
“‘ I have reached a similar conclusion with respect to the descriptive structures proffered by Harris
in Part I of Property and Justice in “Normativity”, supra note 13, and with respect to those of Wal-
dron and Munzer in Deon-Telos, supra note 12 at c. 4,5.
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blooded”, is neither possible, desirable nor justifiable.’75 As a result, Penner proves a
contrario the need to justify private property. It would appear, then, that Penner needs
to re-examine his assumptions and the way they affect his arguments. In particular, he
should consider how they may colour his conclusions about which powers are part of
the property institution and which are not.
Harris takes a less pronounced, more balanced, but still rights-based view. As a
result, he provides a more subtle and wide-ranging contribution to property discourse,
not only in the debates on justice and justification, but also on the descriptive and
normative analyses. In terms of his description of private property, I have argued
elsewhere that Harris’s equilibrated view allows him to identify the component parts
of the institution but that their actual characterization is unduly influenced by the
rights-based starting point.’7’ More important, this review article has illustrated the
impact of being rights-based on the questions of justice and justification of private
property. Harris’s analyses of the comparative persuasiveness of each traditional justi-
fication of private property is influenced by the fact that his standpoint is, in the main,
rights-based. This is also illustrated in Harris’s positing and consideration of the three
minimal assumptions about justice. While less rights-based than Penner, Harris nev-
ertheless aligns himself with the autonomous individual. In attempting to steer clear
of the debate between the Right and the Good, Harris chooses the Right, with all the
implications of that choice ultimately exerting a great deal of influence on the analysis
of the various justificatory and disjustificatory arguments. A more balanced view
would alter the weight given to each argument, resulting logically in changes in insti-
tutional design. In particular, Harris’s conclusions are generally still too strong with
respect to primafacie ownership; he needs to apply the most profound insights of Part
II of Property and Justice to Part I, and reduce the primafacie weight given to owner-
ship.
Both Harris and Penner illustrate indirectly, by commission or omission, the need
for a consideration of property’s deon-telos. As I understand the question, there are
two major, overriding problems with rights-based theories. First, they result in the
omission of certain crucial questions in the understanding of property norms and
rules. What goals, communal and individual, are fostered by the choice of property as
an institution regulating access to and control of resources? In particular, the social
goods and the acts required to achieve these various goals, such as the virtuous use
and conservation of resources, or charity and re-distribution, are left out of most
analyses. Even in the best analyses, Harris’s being a prime example, these aspects, to
the extent they are identified, are characterized as “extrinsic” to the institution and
their justifications extrinsic to the discourse.
Second, even with a consideration of the full scope of various justifications, the
failure to consider property’s deon-telos results in a weighting of often competing
justifications in a manner which does not reflect the reality of the private property in-
stitution. With an understanding of deon-telos, property theorists might discard the
,7 See generally, supra note 3. I have made a similar argument in Deon-Telos, supra note 12.
76 See “Normativity”, supra note 13.
‘
1998]
D. LAME’ITI – PROPERTY AND (PERHAPS) JUSTICE
727
excesses of firmly rights-based understandings and analyses. In particular, property
theorists must stop talking about full-blooded ownership in theory and framing their
discussions in light of the concept, instead re-casting property rights in the context of
the duties and goals that inhere in the institution.
Finally, Harris, on a metaphoric level, also tells us a great deal about property’s
normativity. If property is justifiable, and the process of its justification has an impact
on institutional design, then important conclusions can be drawn about the source of
normativity of private property. One might argue that the normativity of private prop-
erty –
given its controversiality, the failure of any natural rights justifications to ade-
quately justify it, and omnipresent alternatives such as common and state property –
is drawn from the underlying discourse of justification. Moreover, by making as-
sumptions about a minimal morality informing this discourse, Harris might be at least
implying that this discourse is a moral one. I, for one, would welcome such a reading.
