#7141 - Justifications For And Criticisms Of Private Property - Property A

First order theories: why do we have the institution of private property?

Second order theories: assuming we have private property, what ‘things’ should be objects of property?

Third order theories: assuming a ‘thing’ can be owned, who should hold the right to it?

(1.110E) Justification theories are necessary because property rights come about due to a belief that the right to hold private property is a human right. A legal belief has to be grounded in a public belief that the right is morally right, since property rights (eg in land larger than a person can work himself, capital) by some measure allow a person to control the lives of others.

1. First occupation theory- finder’s keepers

• (M R Cohen article) Based on “the assumed right of the original discover and occupant to dispose of that which thus became his”.

• However in Australia – the first people do not have all title – Crown has this. This is a fairly crude older theory.

2. Locke’s labour theory/natural rights theory – the right to the fruits of one’s own labour

• According to this theory, all property was originally owned in common but people (at Locke’s time only men) could appropriate the property by mingling their labour with it. Things belonged to the man who had made them.

• Writing in 1690. Before 1688 the King owned all the land and then the aristocracy did. Although originally we held everything in common, this theory said men had a right to appropriate property as a result of them mingling their labour with the property. Eg if you develop the property (eg are a peasant toiling the land you may have a proprietary right to the produce of the land). This theory did not take off in England at the time Locke was writing because the peasants did most of the labour and if followed this would mean they (not the govt etc) owned the land. Locke’s theory was often used to dispossess the land of First Peoples as they did not ‘toil the land’ as the colonialists thought they should. You will see this theory come up in court cases quite often – has this person put work into the land?

• ‘Life, liberty and property’ (Locke’s catch-cry): [in US and the pursuit of happiness]

• Note Locke’s labour theory was also used to attack private property, as in a capitalist system the owners of land/capital were able to deprive workers of the fruits of their labour.

3. ‘Personhood’ theories (eg Hegel) – self-realisation through external expression of will and personality

• Kant and Hegel – ‘means by which people could express their individual will and personality’ – private property essential for human freedom (SN 1.113, 87)

• Recognition of property as a human right – Charter of Human rights and responsibilities. Section 20 – must not be deprived of property otherwise than in accordance with the law.

• self-realisation through external expression of will and personality. Private property seen as essential for human freedom. Vic CHRR – have a right not to be deprived of property, property rights is a human right according to this! Taken to an extreme people should have the right to sell themselves into slavery (Nozick).

• private property is a means by which people can express their individual will and personality. “Willing” the thing to be his/hers and appropriating it (with/without consent – Kant/Hegel had different views on this). Idea is that private property is essential for human freedom.

4. Utilitarianism (eg Bentham) – incentive effects of property promote aggregate welfare

• incentive effects of property promote aggregate welfare. Minimise harm, maximise good.

• The greatest good for the greatest number.

• Private property is good because if we can exercise control of resources it gives us an incentive to do so productively, and this increases aggregate overall welfare for everyone.

• Utilitarianism was later used to oppose the distribution of wealth in capitalist society (eg a small number hold most resources).

• “private property facilitated human happiness by creating an incentive for thrift and industry”. Welfare of society is increased by wealth creation. This was thought to mean the benefits of private property outweighed the suffering created by inequality.

• Note that utilitarianism was also used to attack the idea of private property, since it could be argued that since men are equal in their needs, communism (equal distribution of wealth) would achieve the greatest good for the greatest number.

5. Economic efficiency theory (eg Posner) – in order to maximise efficiency/wealth of society property rights should be:

1. Universal

• anything that can be owned or controlled should be. If you have private...