No S—, Sherlock!


by Timothy Sandefur

Columbia Law Professor Thomas Merrill has a new article out on the connection between morality and property. It's not a thorough explanation of the moral rightness of private property rights—but one wouldn't expect that—still, it is great to see things like this coming from such a source:

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.

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. 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…."

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