The moral subject of property.

• Author: Rose, Carol M.

I ain't the woman in red, I ain't the girl next door But if somewhere in the middle's what you're lookin' for I'm that kind of girl....

MATRACA BERG/RONNIE SAMOSET, I'm That Kind of Girl, sung by Patty Loveless on ON DOWN THE LINE (MCA Records 1990).

1. INTRODUCTION: THAT KIND OF GIRL

   Utopians do not like private property. In one of the most notorious incidents of the Reformation era, militant Anabaptist preachers called for their followers to establish a Kingdom of the Saints in the town of Muenster in western Germany, gathering supporters in the early 1530s and finally taking over the town from the ruling Prince-Bishop in 1534. (1) The supposedly saintly Kingdom followed, in which a key element, though not an uncontroversial one, was the abolition of private property. (2) According to these Anabaptist leaders, their new converts were without sin. For these earthly saints, the self-regarding payoffs of "Mine" and the discipline of "Thine" were, as one leader said, "abominations." (3) Love and the spirit of community would induce the Saints to work and share selflessly, free from the grubby hoarding, hawking, and wage counting that accompany property rights. (4) As a matter of fact, they were not supposed to need conventional marriage either, a doctrine that worked out quite conveniently for at least one of the Anabaptist leaders, Jan Bockelson, who ditched an old wife and acquired fifteen new ones. (5) But the community of property--and the almost-community of spouses--was not to last. The Prince-Bishop returned with an army, assisted by a number of other alarmed German princes and the townspeople themselves, who had become dismayed at their increasingly tyrannical leaders. (6) The besiegers turned out the Anabaptists in mid-1535, executing Bockelson and a number of other Saints with the exquisitely painful means and public drama reserved for sixteenth-century revolutionaries. (7) Along with the bishop's restoration came the return of laws, marriage, and property--constraining institutions that were thought more compatible with the human state of fallenness--while the Anabaptists eventually retreated to more quietist versions of their faith. (8) Their descendants now reside in Pennsylvania and other places as Mennonites and Hutterites. (9)

   More modern Utopians have not always been quite so confident about their own salvation as Bockelson and his followers, but they too have tended to find private property distasteful and an impediment to perfectionist aspirations. Nineteenth century American utopian communities typically restrained private ownership in various ways, in the expectation that the community members would share at least with one another, although perhaps not with the world at large. (10) Property, it seems, concedes too much to self interest, or perhaps just to old-fashioned sinfulness, to have a good reputation among perfectionists.

   On the other hand, property also presents some problems to those who ascribe too thoroughly to the idea that human beings are merely self-interested--or sinful. William Blackstone famously noted how the imagination and affections of mankind are stirred by the right of property--that "dominion" over things that "one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." (11) But what is so remarkable about that? If one believes in the dominance of self-interest, what is to wonder that each person might claim to exclude all others from something he or she wants? Hoggishness is to be expected from sinners, is it not? No, what should truly strike the imagination is the fact that others--presumably equally hoggish others--pay the slightest attention to any such claims. A right of property would be no dominion at all unless those other persons backed off--playing the "chicken" role to the owner's '"hawk," as the game theoretical language puts it. (12) This relieves the owner of the enervating requirement to guard her property all the time, so that she can actually improve and use it. That is to say, claims to property only make sense in a social context where there is some level of cooperative behavior: if any given subject is to have control over any given object, others must understand the signals of ownership and acquiesce in them. (13)

   These signals of ownership are understood and respected much of the time. They do not always succeed, but often they do, thanks in large part to human forbearance from the impulse to take the money and run. For those convinced of human depravity--otherwise known, by some, as "rationality"--that fact should be the true wonder of Blackstonian claims of dominion. A property regime would be impossible, an unsolvable n-person "Prisoners' Dilemma," if everyone behaved in the presumptive piggish manner all the time. (14) Instead, we have property regimes that rest on an underlying thread of cooperative behavior that is quite out of line with a presumption of total moral fallenness.

   One may understand the basic moral subject of property regimes as the practicioner of a kind of second-best morality. This morality does not presume saintliness, but it also is not made for total sinners; she is neither the girl next door nor the woman in red. (15) The common law of property details the second-best morality expected of "that kind of girl," both as owner and as nonowner. As a nonowner, she is expected to ask permission of an owner and not just take things without consent, even when the owner's refusal seems unreasonable. (16) Nor can she usually foist an improvement on the owner unless the owner consents. (17) In her role as owner, on the other hand, although she has a wide latitude with her belongings, she cannot use them in ways that aggravate her neighbors in unusual ways. (18) More particularly, she cannot use her property maliciously simply to spite another. (19) Spite only escalates wasteful retaliation, in which each side expends resources just to ruin the other party's things, resulting in a double loss for the society at large. Moreover, property regimes require that on some occasions, especially in emergency situations, the owner must yield to the nonowner who encroaches on her property. (20)

   Like the common law itself, the theoretical names for property practices reflect the second-best character of the morality expected in property regimes, encapsulated in phrases like "self-interest rightly understood," (21) "tit for tat," (22) or "everyday Kantianism." (23) Aside from the fact that some people do not abide even by this second-best morality, however, the trouble with this moral middle ground is that it is a large and sometimes ambiguous space. Take the issue of spite or malice, for example: was the owner really acting maliciously toward the neighbor when she built a fence that totally blocked the view from his basement window and then poured water onto the plants there? Or was she merely putting up a kind of trellis on which to grow her vines? (24) Or take the case of emergency: is a potentially dangerous detour enough of a necessity to permit a trucker to drive across a lot in spite of the landowners's objection? (25) Then too, just how wide is the owner's latitude to carry out her preferences? Can she join with her neighbors, for example, in a set of agreements to exclude minorities or disabled persons from the neighborhood? (26)

   Some cases like these are decided in favor of the owners and some against. Perhaps because of their ambiguities, and perhaps also because we deal with property virtually constantly, property as an institution raises an unusually large number of moral complaints. (27) Why should anyone recognize and acquiesce to other people's claims of exclusive dominion over anything? This question need not derive from hoggish self-interest, or simply from the intruder or the thief who wants to take the goodies and run; rather, this question originates from the opposite direction, namely that of the perfectionist. The perfectionist might ask, is the institution of property morally worthy enough to command the respect and forbearance upon which it depends?

   The remainder of this Essay explores that question, pursuing it in several areas in which moral objections to property frequently arise, and exploring as well the explanations that property proponents give. The argument of this Essay is that the moral objections to the institution of property generally are drawn from the sense that property concedes too much to human self-interest. The responses, on the other hand, generally take a form that common lawyers would have called confession and avoidance: property law does so for some larger good. Indeed, even when conventional understandings of property require the property owner to give ground, as in the spite cases, they do so from the perspective of the larger public utility at least as much as from the perspective of private morality. And that is the point: these arguments and responses in certain ways do not meet each other. Instead, they pit concerns for individual morality against justifications based on public welfare, which is a very different matter. (28) Whatever the inadequacies of the utilitarian response to first-best or perfectionist moral complaints, however, I will argue that there is a humaneness in the second-best position that in some ways allows it to call the first-best position into question.

2. MORAL OBJECTIONS TO PROPERTY

   Where, then, does property come under moral attack? This occurs in many places, but this Essay will concentrate on three somewhat overlapping loci: acquisition (where it is argued that property is based on wrongful acts of acquisition), distribution (where it is argued that property is unequally and unfairly distributed), and commodification (where it is argued that treating things as property undermines their true meaning). Other issues might have been raised, such as externality (where it is...