Introductory remarks.

• Author: Dwyer, James G.
• Position: PROPERTY LAW

The three essays on property law focus primarily on its relationship to the moral beliefs, attitudes, and experience of the average person in society, rather than to moral theory. First, Merrill and Smith argue for the proposition that a society's property laws "must be regarded" as resting upon widely accepted moral principles that are simple and that include recognition of moral rights with respect to things. (1) They see this proposition as at odds with the view "that property is a pure creature of law" and with the modern utilitarian approach to analyzing property, which is 'largely indifferent to questions of individual rights and distributive justice." (2) And they view the proposition, once established, as a basis for critiquing the "bundle of sticks" conception of property rights and the Coasean postulate of reciprocal causation, because those ideas are too complex and/or counter intuitive for the average person. (3)

A basic ambiguity in Merrill and Smith's thesis makes it difficult to assess the success of their arguments. It is unclear whether they claim (1) that the best theoretical justification for a property law regime must consist of simple moral precepts, or (2) that property law must coincide with and be understood by the average person in terms of some simple moral beliefs. The first would be a claim about the relationship between moral theory and property law, whereas the second would be a sociological claim about the relationship between popular moral beliefs and popular support for and adherence to property laws. Language in their essay suggests the authors are making both claims. (4) Their argument at best supports only claim #2, however, because it rests entirely on empirical assumptions about the average person's views about property rights and the average person's willingness to obey the law. Merrill and Smith offer no basis for unifying the two--that is, for concluding that the best theoretical justification for property laws is whatever set of moral propositions the average person will accept and act upon. Yet until they provide a compelling argument for claim #1, they will not have provided a basis for criticizing theorists who use the bundle-of-sticks metaphor or Coasean theory in presenting theoretical normative arguments for or against particular property rules.

In addition, their case for claim #2 is not entirely convincing. They are quick to assume that the bundle-of-sticks and reciprocal causation concepts...