Abstract
Philosophical theories of property rights struggle to adequately explain the moral significance of ownership. We propose that the moral significance of property rights is due to the intersection of what we call "the extended self” and conventionally protected rights claims. The latter, drawing on conventionalist accounts of property rights, explains the social nature and flexibility of property. The former, drawing on naturalist theories, explains their personal nature. The upshot is that we find at this intersection the full moral significance of property.
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Notes
Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).
Margaret Radin, “Property and Personhood,” Stanford Law Review 34 (1982): 957–1015.
Karl Marx, Capital Vol. 1, Fowkes, B. (transl.) (London: Penguin Classics; Reprint edition, 1992 [1867]), p. 346.
Compare Steinbeck’s description of owning (real) property in The Grapes of Wrath: “If a man owns a little property, that property is him, it’s part of him, and it’s like him. If he owns property only so he can walk on it and handle it and be sad when it isn’t doing well, and feel fine when the rain falls on it, that property is him, and some way he’s bigger because he owns it. Even if he isn’t successful he’s big with his property.” See John Steinbeck, The Grapes of Wrath (New York, NY: Penguin Classics, 2006 [1939]), p. 37.
John Locke, Two Treatises of Government, Laslett, P. (ed.) (Cambridge: Cambridge University Press, 1988 [1689]), Second Treatise, sec. 26 (emphasis ours).
Locke, Two Treatises, Second Treatise, sec. 28. This element of Locke’s thought is emphasized by Karl Olivecrona: “That a thing is ‘my own’ means, in the opinion of Locke, that it is part of myself. For that reason nobody else can have any right to it.” See Karl Olivecrona, “Locke’s Theory of Appropriation,” The Philosophical Quarterly 24 (1974): 220–234, p. 222.
In Hegel’s phrasing, property helps us in “superseding and replacing the subjective phase of personality.” See G.W. F. Hegel, The Philosophy of Right, T.M. Knox (trans.) (Cambridge: Cambridge University Press, 1967 [1821]), para. 41a.
Radin, “Property and Personhood,” p. 959.
See also Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), ch. 10; Dudley Knowles, “Hegel on Property and Personality,” The Philosophical Quarterly 33 (1983): 45–62.
A recent and intriguing version of this argument has been offered by Dan Russell. According to Russell: “psychological identity and the activities in which it consists are ‘embodied’: the boundaries of the self include one’s body as well as—and for the same reason—certain parts of the extrapersonal world.” See Daniel C. Russell, “Embodiment and self-ownership,” Social Philosophy and Policy 27 (2010): 135–167.
Radin, “Property and Personhood,” p. 978ff.
Locke, Two Treatises, Second Treatise, sec. 28.
Radin, “Property and Personhood,” p. 960.
Radin, “Property and Personhood,” p. 1014–5.
That is, we disagree with both Radin’s diagnosis of the involvement of the self (more on that below) and with the implication she draws in terms of the protections such possessions merit.
Harold Demsetz, “Toward a Theory of Property Rights,” The American Economic Review 57 (1967): 347–359.
Robert C. Ellickson, “Property in Land,” Yale Law Journal 102 (1993): 1315–1400, pp. 1344–1362, 1387–1397.
S. Holmes and C. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (W. W. Norton & Company, 2000); C.M. Melenovsky and J. Bernstein, “Why Free Market Rights are not Basic Liberties” Journal of Value Inquiry 49 (2015): 47–67; Shmuel Nili, “The Idea of Public Property,” Ethics 129 (2019): 344–369; L. Murphy and T. Nagel, The Myth of Ownership: Taxes and Justice (Oxford University Press, 2004).
Eric Mack, “Elbow Room for Rights,” in Peter Vallentyne, David Sobel & Steven Wall (eds.) Oxford Studies in Political Philosophy, Vol. 1. (Oxford University Press, 2015), pp. 194–221, 219-220. Cf.
A. John Simmons, The Lockean Theory of Rights (Princeton University Press, 1992), pp. 104, 270, 316.
Billy Christmas, “Answering the Conventionalist Challenge to Natural Rights Theory,” Res Publica 27 (2021): 329–345.
Thus, our arguments here are not in conflict with Christmas, “Answering the Conventionalist Challenge to Natural Rights Theory.” In Christmas’ argument, there is no sign that natural rights to property must involve an extension of the self. This avoids the standard worries with naturalism (as it is defined here). However, it raises the same question that conventionalism faces: whether property has a personal dimension. Our argument below answers this question.
This point about conventionalism is widely accepted in conventionalist theories of promising. See e.g. T.M. Scanlon, “Promises and Practices” Philosophy and Public Affairs 19 (1990): 199–226; Habib Allen, “Promises,” The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), ed. Edward Zalta, URL = http://plato.stanford.edu/entries/promises.
It’s worth recalling here that many conventionalists find an attractive feature of the view that it allows governments to reallocate and reorganize their own property systems, thereby altering and sometimes nullifying prior claims of subjects within that system. See e.g. Nili, “The Idea of Public Property”, p. 356.
Donald E. Brown, Human Universals (New York: McGraw Hill, 1991), pp. 139–40; Charles F. Hockett, Man’s Place in Nature. (New York: McGraw Hill, 1973), ch. 11; Lionel Tiger and Robin Fox, The Imperial Animal (New York: Holt, Rinehart and Winston, 1971), ch. 5; George P. Murdock, “The Common Denominator of Cultures,” in Ralph Linton, (ed.), The Science of Man in the World Crisis (New York: Columbia University Press, 1945), pp. 123-142, p. 124; Clark Wissler, Man and Culture (New York: Thomas Y. Crowell Company, 1923), pp. 74-5.
Cf. Dan-Cohen, “The Value of Ownership,” p. 405; Bart Wilson, The Property Species: Mine, Yours, and the Human Mind (Oxford: Oxford University Press, 2020), ch. 5.
Belk, “Possessions and the Extended Self,” p. 160.
We will refer to the things falling under the mineness relation as things we possess or things that are our own, where this does not necessarily imply that they are our property, which is a term we will restrict to those possessions over which we have the familiar rights.
Brown, Human Universals, p. 132; Belk, “Possessions and the Extended Self,” p. 141.
See e.g. J.P. Tangey and K.W. Fischer (eds.), Self-Conscious Emotions: The Psychology of Shame, Guilt, Embarrassment, and Pride (Guilford Press, 1995).
Belk, “Possessions and the Extended Self,” p. 142.
Georg Simmel, The Sociology of Georg Simmel, trans. by Kurt H. Wolff (Glencoe, IL: Free Press, 1950), p. 322.
Barbara B. Brown, “House and Block as Territory.” Paper presented at the 1982 Conference of the Association for Consumer Research, San Francisco, CA.
Kenneth J. Doka, “Loss Upon Loss: The Impact of Death After Divorce,” Death Studies 10 (1986): 441-449; Belk, “Possessions and the Extended Self,” p. 156. As William James put it: “This sort of interest is really the meaning of the word ‘my.’ Whatever has it is eo ipso a part of me. My child, my friend dies, and where he goes I feel that part of myself now is and evermore shall be.” See William James, The Principles of Psychology. Vol. 1, (New York: Henry Holt, 1890), p. 201 [324].
William G. Niederland, “Clinical Aspects of Creativity,” American Imago 24 (1967): 6-34; William G. Niederland and Bahman Sholevar, “The Creative Process—A Psychoanalytic Discussion,” The Arts in Psychotherapy 8 (1981): 71–101; Belk, “Possessions and the Extended Self,” p. 143.
James W. Wiggins, “The Decline of Private Property and the Diminished Person,” in Samuel L. Blumenfeld (ed.) Property in a Humane Economy (LaSalle, IL: Open Court, 1974). pp. 71-84. The acquisition of property concepts in young children is discussed in Federico Rossano, Hannes Rakoczy, and Michael Tomasello, “Young Children’s Understanding of Violations of Property Rights,” Cognition 121 (2011): 219-27.
D. Hart and M.P. Karmel, “Self-Awareness and Self-Knowledge in Humans, Apes, and Monkeys,” in A.E. Russon & K.A. Bard (eds.) Reaching into Thought: The Minds of the Great Apes (New York: Cambridge University Press, 1996), pp. 325–347.
Ruth Feldman, Daphna Dollberg, and Roni Nadam, “The Expression and Regulation of Anger in Toddlers: Relations to Maternal Behavior and Mental Representations,” Infant Behavior and Development 34 (2011): 310–320.
Larry P. Nucci and Elliot Turiel, “Social Interactions and the Development of Social Concepts in Preschool Children,” Child Development 49 (1978): 400–407.
Daniel Hart and M. Kyle Matsuba, “The Development of Pride and Moral Life,” in Jessica L. Tracy, Richard W. Robins, and June Price Tangney (eds.), The Self-Conscious Emotions (New York: The Guilford Press, 2007), pp. 114–133, p. 119.
Hart and Matsuba, “The Development of Pride and Moral Life.”
These are called reasons of fit, pro tanto reasons to feel something that may be outweighed, all-things-considered, by pro tanto reasons from other value domains. If the rabid dog before me can smell fear, then while I still have a reason of fit to feel fear at its threat to me or mine, I have a stronger reason of prudence not to. See Justin D’Arms and Daniel Jacobson, “Sentiment and Value,” Ethics 110 (2000): 722-748; Justin D’Arms and Daniel Jacobson, “The Significance of Recalcitrant Emotion (or, Anti-Quasijudgmentalism),” Royal Institute of Philosophy Supplement 52 (2003): 127–145.
Are these emotions fitting in virtue of their being correct responses to the antecedent fact of our self’s extension, or is the range of the self’s extension actually determined by the fittingness of emotional responses to loss? We take no stance on this hard metaphysical question. All that matters for our purposes is that there is a natural normative relation between the two.
Interestingly and importantly, The Extended Self Thesis isn’t restricted to cases of individual possession. Some communities make claims about traditional cultural expressions. Those expressions are theirs, it is thought, and so its members will tend to be angry or grief-stricken in response to their appropriation or loss. This is because these expressions are a function of their combined creative activity. The loss felt by individuals, then, is partly a matter of their identification with that group: Appropriation of my group’s creative expression is appropriation of me qua co-owner of that expression.
We are well aware that there are also other, typically more powerful, moral reasons not to damage other people and their things, grounded in values like well-being and respect. These may be natural moral facts as well. They can’t capture, however, the pro tanto reasons against my causing you heartbreak by breaking up with you, for example, or the sorrow you cause me by selling to a stranger the old records of mine that I gave you. These reasons are typically outweighed by others, but that doesn’t eliminate their status as pro tanto reasons that must go into the deliberative hopper, and whose defeated status as reasons is nevertheless reflected in the emotional residue of that defeat.
Daniel Attas, “The Negative Principle of Just Appropriation,” Canadian Journal of Philosophy 33 (2003): 343–372.
Recall Belk’s finding that when what we conceive as ours is taken or destroyed, we respond with sorrow, grief, or despair, sometimes calling it an “invasion,” or a “pollution,” even an assault akin to “rape.” See Belk, “Possessions and the Extended Self,” p. 142.
Carla Bagnoli discusses the notion of moral distress, which is the subjective experience of having been wronged. According to Bagnoli, the person who feels this may certainly be mistaken—they might not have been wronged after all—but that doesn’t undermine the claim for normative attention they are demanding through the experience and expression of their distress. Such moral distress, we think, is close to what we have in mind for the feelings called up by loss or damage caused to me and mine. See Carla Bagnoli, “Feeling Wronged: The Power and Deontic Value of Moral Distress,” Ethical Theory and Moral Practice 25 (2022): 89–106.
Cf. Dan-Cohen, “The Value of Ownership"; Wilson, The Property Species.
Anna Stilz recognizes that conventionally designated property rights can have naturalist moral import, but holds that this moral significance extends only to what is sometimes called personal property. This, we argue, is mistaken. It seems to follow from Stilz’s account that the money in my retirement account, say, is not imbued with personal moral significance. But this is plainly false: retirement savings are a deeply personal matter, and having them expropriated would represents an assault in just the way we detail here. See Anna Stilz, “Property Rights: Natural or Conventional?” in The Routledge Handbook of Libertarianism, ed. Jason Brennan, Bas van der Vossen & David Schmidtz. (New York: Routledge, 2018).
One might think there is another wrong involved here, one resulting from an attack on the political right of collective self-determination. This attack occurs because the colonialists are changing the content and allocation of property rights, which the native people have a right to determine. Nothing in our discussion here is inconsistent with this point. Our claim implies only that this collective right cannot explain the case fully: there also are direct wrongs to the individual owners involved.
Note that this idea does not entail that morally acceptable property conventions must grant people private property rights. It may be that we can imagine (and perhaps historically pick out) just societies in which possessions are held in common. But the slaves in our example are denied even this.
Perhaps, as some libertarian thinkers suggest, justified slavery is possible, if slaves have given their voluntary consent. In that case, our view indeed has the implication that the ownership of others can have its full moral significance. But if this libertarian position on slavery is true, then this is how things should be. For, in that case, we are really dealing with a morally unproblematic case of ownership.
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We are grateful for the helpful remarks we received from several people who read earlier versions of this paper, including Andrei Marmor, Shaun Nichols, Hannah Carnegy-Arbuthnott, Sean Aas, John Thrasher, Keith Hankins, Bart Wilson, and Kelvin McQueen. We’d also like to include on this list our thanks to the many anonymous referees from journals that rejected earlier versions of this paper. In a few instances, they actually made the paper better. Finally, we are grateful to Steve Wall, Bryan Leonard, and Vernon Smith for helpful informal discussions of some of the ideas contained herein.
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Shoemaker, D., van der Vossen, B. Now It’s Personal: From Me to Mine to Property Rights. Law and Philos 42, 177–203 (2023). https://doi.org/10.1007/s10982-022-09459-5
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DOI: https://doi.org/10.1007/s10982-022-09459-5