12 Gerald Gaus contra David Schmidtz--the Right to Exclude
Gerald Gaus, “Property and Ownership” in Oxford Handbook of Political Philosophy, ed. David Estlund (Oxford: Oxford University Press, 2012)
[14] 3.2 Retreating to a Core
In the face of the difficulties of justifying the full set of property rights involved in liberal ownership, we might retreat to a core set of rights that characterizes ownership. For example, we might hold that one is the owner if one has the rights of use, exclusion, transfer, compensation and income.42 But, first, this is already a sufficiently large enough bundle that [15] the Problem of Restricted Justification is apt to arise again: we would need a justification that points to this, specific, entire bundle of rights. More importantly, each of these incidents itself fragments. For example zoning and historic district laws regulate some uses, consumer protection and laws against fraud limit some transfers of rights, right-of-way provisions as well as racial discrimination laws prohibit some exclusions, banking and financial regulations prohibit some ways of earning income from a variety of financial instruments. Limited liability companies restrict some rights of compensation. We should not think of the fragmentation thesis as holding that there are, say, eight discrete rights which may break apart: each of these rights itself fragments into a variety of rights, liberties, and powers in particular contexts.
David Schmidtz, while acknowledging that “today the term ‘property rights’ generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even
destroy,” nevertheless insists that “at the heart of any property right is a right to say no: a right to exclude non-owners. In other words, a right to exclude is not just a stick in a bundle. Rather, property is a tree. Other sticks are branches, the right to exclude is the trunk.”43 This is because, Schmidtz argues “without the right to say no, other rights in the bundle are reduced to mere liberties rather than genuine rights.”44
More strictly, if one does not have the right to exclude, but does have the right to transfer, income, and compensation, one can be said to have a liability right: others can use X without one’s consent, but they must compensate one for doing so, and one can transfer this right to others and earn income fromit.45
Like most distinctions, this one becomes less clear when we look at is closely. Consider the classic case presented by Joel Feinberg:
[16] Suppose that you are on a backpacking trip in the high mountain country when an
unanticipated blizzard strikes the area with such ferocity that your life is imperiled.
Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the
winter, clearly someone else’s private property. You smash a window, enter, and huddle
in the corner for three days until the storm abates. During this period you help yourself to
your unknown benefactor’s food supply and burn his wooden furniture in the fireplace
you keep warm. Surely you are justified in doing all these things, and yet you have
infringed the clear rights of another person.46
It looks very much like circumstances have transformed the cabin owner’s property right into a liability right: the stranded hiker can use it provided she pays compensation. Even if the owner erected a large sign saying “Can you use this cabin in case of emergency? No!” it would not be wrong for our hiker to use it provided she compensated afterwards. Lomasky argues that in such cases the justification for property in the first place–that it facilitates projects–fails to justify the right to say “no”: we cannot expect a person to accede to our project-based demands at an extraordinarily high cost to his own.47 In this case while it seems unreasonable to insist on a property right, a liability right is justifiable.48 (Note that this is a version of the problem of Restricted Justification, here about the scope of the right to exclude). In this case we would not want to say that the owner of the cabin is not “really the owner” since he does not have a core right of exclusion in this case.
Thus there are important rights to property that are, strictly speaking, liability rights, and only because they are liability rights rather than pure exclusionary rights (with the power to say “no”) are they justifiable. Suppose, though, it is claimed that these are marginal and exceptional cases. Wouldn’t we say that real and important property rights always involve [17] the core power to say “no,” and if one has that core right protected one is the owner? I do not think so. Certainly exclusion (and, say, the ability to refuse transfer, part of the Schmidtz’s general right to say “no”) is an important incident, but so is the right to transfer. We cannot, I think, say that one who has the right to exclude and manage but not transfer is unambiguously the owner, while someone who has a transferable liability right with right to income is not. Consider the principle of entail in the common law; an owner of an entailed property (such as a family estate) could exclude others at will and determine the use to which land was put and earn income from its use, but he was without the right of transfer. Was he the owner? Not without reason was such a person often described as the “the holder” of the property. As Mrs. Bennett remarked of the Collinses in Pride and Prejudice, “Well, if they can be easy with an estate that is not lawfully their own, so much the better. I should be ashamed of having one that was only entailed on me.”[49] Certainly in many contexts a transferable liability right may better allow one to advance one’s ends than a nontransferable right to say “no.” As the much-maligned Mrs. Bennett also sensibly remarked, “There is no knowing how estates will go when once they come to be entailed.”50
42 See my “Property, Rights, and Freedom,” pp. 213-4. See also Frank Snare, “The Concept of Property,” American Philosophical Quarterly, vol. 9 (April 1972): 200-206.
43 Schmidtz, “Property and Justice,” p. 80. Schmidtz attributes the metaphor of property as a “bundle of sticks” to John Lewis, Law of Eminent Domain (Chicago: Callaghan and Co., 1888).
44 Schmidtz, “Property and Justice,” p. 80.
45 Ibid., pp. 80-81. The classic analysis of this distinction is Guido Calabresi and A. Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review, vol. 85 (1972): 1089-1128.
46 Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” Philosophy & Public Affairs, vol. 7 (1978): 93-123 at p. 102.
47 Loren E. Lomasky, “Compensation and the Bounds of Rights,” in NOMOS XXXIII: Compensatory Justice, edited by J. Roland Pennock and John W. Chapman (New York: New York University Press, 1991): 13-44.
48 Schmidtz acknowledges that “the right to say no is stringent but not absolute.” “Property and Justice,” p. 82.
49 Jane Austin, Pride and Prejudice (numerous editions), chap. 40.
Gerald Gaus, “Property and Ownership” in Oxford Handbook of Political Philosophy, ed. David Estlund (Oxford: Oxford University Press, 2012)
[14] 3.2 Retreating to a Core
In the face of the difficulties of justifying the full set of property rights involved in liberal ownership, we might retreat to a core set of rights that characterizes ownership. For example, we might hold that one is the owner if one has the rights of use, exclusion, transfer, compensation and income.42 But, first, this is already a sufficiently large enough bundle that [15] the Problem of Restricted Justification is apt to arise again: we would need a justification that points to this, specific, entire bundle of rights. More importantly, each of these incidents itself fragments. For example zoning and historic district laws regulate some uses, consumer protection and laws against fraud limit some transfers of rights, right-of-way provisions as well as racial discrimination laws prohibit some exclusions, banking and financial regulations prohibit some ways of earning income from a variety of financial instruments. Limited liability companies restrict some rights of compensation. We should not think of the fragmentation thesis as holding that there are, say, eight discrete rights which may break apart: each of these rights itself fragments into a variety of rights, liberties, and powers in particular contexts.
David Schmidtz, while acknowledging that “today the term ‘property rights’ generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even
destroy,” nevertheless insists that “at the heart of any property right is a right to say no: a right to exclude non-owners. In other words, a right to exclude is not just a stick in a bundle. Rather, property is a tree. Other sticks are branches, the right to exclude is the trunk.”43 This is because, Schmidtz argues “without the right to say no, other rights in the bundle are reduced to mere liberties rather than genuine rights.”44
More strictly, if one does not have the right to exclude, but does have the right to transfer, income, and compensation, one can be said to have a liability right: others can use X without one’s consent, but they must compensate one for doing so, and one can transfer this right to others and earn income fromit.45
Like most distinctions, this one becomes less clear when we look at is closely. Consider the classic case presented by Joel Feinberg:
[16] Suppose that you are on a backpacking trip in the high mountain country when an
unanticipated blizzard strikes the area with such ferocity that your life is imperiled.
Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the
winter, clearly someone else’s private property. You smash a window, enter, and huddle
in the corner for three days until the storm abates. During this period you help yourself to
your unknown benefactor’s food supply and burn his wooden furniture in the fireplace
you keep warm. Surely you are justified in doing all these things, and yet you have
infringed the clear rights of another person.46
It looks very much like circumstances have transformed the cabin owner’s property right into a liability right: the stranded hiker can use it provided she pays compensation. Even if the owner erected a large sign saying “Can you use this cabin in case of emergency? No!” it would not be wrong for our hiker to use it provided she compensated afterwards. Lomasky argues that in such cases the justification for property in the first place–that it facilitates projects–fails to justify the right to say “no”: we cannot expect a person to accede to our project-based demands at an extraordinarily high cost to his own.47 In this case while it seems unreasonable to insist on a property right, a liability right is justifiable.48 (Note that this is a version of the problem of Restricted Justification, here about the scope of the right to exclude). In this case we would not want to say that the owner of the cabin is not “really the owner” since he does not have a core right of exclusion in this case.
Thus there are important rights to property that are, strictly speaking, liability rights, and only because they are liability rights rather than pure exclusionary rights (with the power to say “no”) are they justifiable. Suppose, though, it is claimed that these are marginal and exceptional cases. Wouldn’t we say that real and important property rights always involve [17] the core power to say “no,” and if one has that core right protected one is the owner? I do not think so. Certainly exclusion (and, say, the ability to refuse transfer, part of the Schmidtz’s general right to say “no”) is an important incident, but so is the right to transfer. We cannot, I think, say that one who has the right to exclude and manage but not transfer is unambiguously the owner, while someone who has a transferable liability right with right to income is not. Consider the principle of entail in the common law; an owner of an entailed property (such as a family estate) could exclude others at will and determine the use to which land was put and earn income from its use, but he was without the right of transfer. Was he the owner? Not without reason was such a person often described as the “the holder” of the property. As Mrs. Bennett remarked of the Collinses in Pride and Prejudice, “Well, if they can be easy with an estate that is not lawfully their own, so much the better. I should be ashamed of having one that was only entailed on me.”[49] Certainly in many contexts a transferable liability right may better allow one to advance one’s ends than a nontransferable right to say “no.” As the much-maligned Mrs. Bennett also sensibly remarked, “There is no knowing how estates will go when once they come to be entailed.”50
42 See my “Property, Rights, and Freedom,” pp. 213-4. See also Frank Snare, “The Concept of Property,” American Philosophical Quarterly, vol. 9 (April 1972): 200-206.
43 Schmidtz, “Property and Justice,” p. 80. Schmidtz attributes the metaphor of property as a “bundle of sticks” to John Lewis, Law of Eminent Domain (Chicago: Callaghan and Co., 1888).
44 Schmidtz, “Property and Justice,” p. 80.
45 Ibid., pp. 80-81. The classic analysis of this distinction is Guido Calabresi and A. Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review, vol. 85 (1972): 1089-1128.
46 Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life,” Philosophy & Public Affairs, vol. 7 (1978): 93-123 at p. 102.
47 Loren E. Lomasky, “Compensation and the Bounds of Rights,” in NOMOS XXXIII: Compensatory Justice, edited by J. Roland Pennock and John W. Chapman (New York: New York University Press, 1991): 13-44.
48 Schmidtz acknowledges that “the right to say no is stringent but not absolute.” “Property and Justice,” p. 82.
49 Jane Austin, Pride and Prejudice (numerous editions), chap. 40.
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