The morality of property.

• Author: Merrill, Thomas W.

INTRODUCTION

The relationship between property and morality has been obscured by three elements in our intellectual tradition. First is the assumption, which can be traced to Bentham, that property is a pure creature of law. (1) An institution assumed to be wholly dependent on law for its existence is unlikely to be infused with strong moral content. Second is the related tradition, also Benthamite, of examining questions about property law from a utilitarian perspective. (2) Utilitarianism is, of course, a moral theory. But in its modern applications, based on price theory and cost-benefit analysis, it adopts a framework largely indifferent to questions of individual rights and distributive justice, which many consider the hallmarks of a moral perspective. Third is the tradition, stronger perhaps in academic circles than in popular thought, that associates property with immorality. Starting with Proudhon's slogan that "property is theft," (3) and building through Marx and Engels with their call for the abolition of private property, (4) this tradition has put property on the defensive in the minds of those drawn to thinking of public policy in moral terms.

This Essay seeks to challenge the conventional wisdom that dissociates property and morality. We hope to establish two propositions. First, no system of property rights can survive unless property ownership is infused with moral significance. By this, we mean that the differentiating feature of a system of property--the right of the owner to act as the exclusive gatekeeper of the owned thing--must be regarded as a moral right; intentional violations of this right, either by unlicensed invasions of owned things or unconsented takings of owned things, must be regarded as immoral acts. Second, the modern American legal system, at least with respect to this core aspect of property, does in fact adopt such a moral perspective.

Our claims are based on the following fundamental aspects of property: Property is a device for coordinating both personal and impersonal interactions over things. Consequently, property rights must be communicated to a wide and disparate group of potential violators; these rights are in rem. (5) Because property rights need to coordinate the behavior of large numbers of unconnected people, they must be easily comprehended and must resist possible misinterpretation. Law, including criminal prosecution and civil enforcement actions, is almost certainly inadequate to achieve this degree of coordination and compliance. Self-help, such as erecting fences and hiring guards, is also too feeble to assure the required degree of near-universal respect for property rights. Property can function as property only if the vast preponderance of persons recognize that property is a moral right, and this requirement has important consequences for the study of property.

For property to serve as an in rem coordination device, the morality upon which it rests must be simple and accessible to all members of the community. We do not attempt here to outline any theory of the origins of property. We do argue that the imperative of in rem coordination places significant constraints on the kind of morality upon which property must rest. Again, we do not offer any fully developed theory of the content of such a morality. But it seems highly unlikely that such a morality will be captured by many forms of utilitarianism. Pragmatism is too uncertain, and case-specific cost-benefit analysis too demanding and error-prone, to supply the kind of robust and widely accepted moral understanding needed to sustain a system of property.

Because the type of morality that will support a system of property rights must be suitable for all members of the community, to say that the essential quality of property is captured by the familiar metaphor of the bundle of sticks is also implausible. When it comes to the public definition of property rights, the metaphor implies that the content of property rights continually mutates from one context to the next as legislatures and courts add new sticks to the bundle and take others out. Such a process would make impossible the maintenance of a system of simple moral duties comprehensible to all. Likewise, if the core of property law must rest on a simple foundation of everyday morality, property is unlikely to be wholly the creature of law. If we are right about the necessary connection between property and morality, then Bentham is almost certainly wrong that property arises wholly from law. (6)

Human rights, including rights of bodily security and integrity, are another realm in which rights are widely held not to be wholly dependent for their existence on the state. We will argue that property rights and human rights have much more in common than is often supposed. In particular, both types of rights are "in rem," in the sense that they create corresponding obligations of noninterference on a very large and unspecified mass of dutyholders. (7) Moreover, given the communication problems associated with creating and maintaining such large-scale duties, the content of the respective rights must remain correspondingly simple. "No punching" is the direct analogue of "No taking."

If property is grounded in simple moral principles recognized by all members of society, then one can say property is immoral only by standing outside the existing social system. This stance, of course, is characteristic of the socialist revolutionaries who have excoriated property: they typically have been outsiders seeking to overthrow the existing social order.

We do not offer the in rem nature of property rights as a theory of the morality of property. But recognizing the features of morality that make possible a system of in rem rights helps explain the relationship of morality and property. Nor do we claim that the traditional everyday morality that supports property extends to the refinements required when we move beyond simple exclusion rights and in rem dutyholders. Beyond the core of property, the simple robust morality supporting exclusion rights gives way to more pragmatic situational morality. In these more rarified contexts, decision makers can afford to let other moral considerations in, including the case-by-case pragmatism characteristic of modern utilitarianism, if so desired. At least the communicative cost constraints from core property do not stand in the way.

Part I of this Essay will consider the relation of property and morality in general. We will argue that, as in the case of human and civil rights, the in rem nature of property rights requires support from very simple and robust moral intuitions. To coordinate expectations among unconnected people through the mediating device of a thing, property must draw on a type of morality that calls for more than pragmatic balancing. In Part II we consider a number of areas of property law that illustrate the role moral intuitions and condemnation play in modern American property law. Part III will consider how situational morality plays a role in refinements to the core exclusionary regime of property law. We also argue that these refinements are just that--refinements--and do not undermine the need for the morally grounded exclusion rights at the core of property.

1. MORALITY AND IN REM RIGHTS

   In this Part, we argue that the critical feature of property rights--that they are in rem rights imposing duties of abstention on all other members of the relevant community--requires that property rights be regarded as moral rights. The nature of property as a coordination device among unconnected and anonymous actors, mediated through stereotyped things, requires that property rights command widespread respect. This respect can only be provided by some version of morality that treats violations of possession, theft, trespasses, and other gross interferences with property as wrongs subject to widespread disapprobation. This moral code--whatever its origins and whatever its justification--is backstopped by criminal and civil legal enforcement and by self-help. But it is implausible to imagine that legal enforcement or self-help, either alone or in combination, is sufficient to sustain a system of property rights without such a system of morality.

   1. The Moral Nature of In Rein Rights

      Property rights, like human rights such as rights of personal security, face a general structural challenge if they are to get up and running. Both property rights and human rights are "in rem" or "good against the world." The in rem nature of such rights means all actors in the relevant community must recognize that they are subject to a duty to abstain from interfering with such rights insofar as they are held by any other member of the community. This generalized duty, in turn, creates an enormous information cost and collective action problem. The rights must be defined in such a way that their attributes can be easily understood by a huge number of persons of diverse experience and intellectual skills. (8) The identity of the persons who hold such rights must be capable of communication by signals that can be immediately grasped and processed by an equally large multitude.

      Take, by way of illustration, property rights in automobiles. In modern society, certainly in urban areas, thousands of automobiles circulate about and are parked here and there. Each auto is owned by someone--a single person, perhaps a couple, perhaps a corporation. The owners generally succeed in keeping track of and identifying their own cars. But most of the time virtually no one knows the identity of the owners of all the thousands of other cars they see on the streets and in parking lots. In order to maintain a semblance of stability in this system, not only must each owner recognize and exercise dominion over his own car, but virtually all members of society---owners and nonowners alike--must recognize and respect the unique claims of...