PROPERTY AS A LEGAL, CULTURAL OR
One often wonders what possesses theorists on property.
Some of them seriously believe (or want us to believe) that
property is 'entirely the work of law', that there was no
property before laws were made. Furthermore, they may contend
that 'property is nothing but a basis of expectation'. Well,
this may be true in some sense, that is, in some sense of
basis and in some sense of expectation.
A basis of expectation need not be legal, to be sure, but may also be
social (in a nonlegal,
factual-modal way) or
normative when one's own or other
people's argumentation in terms of norms (or moral rights) is persuasive
And then, expectation is so general a term that it may be
expectation on the basis of mathematically calculable probabilities, on the
basis of an existing system of (sub)cultural
norms or rules (including legal ones) or on no other basis than what is
Now, it is indeed possible to make nonlegal property impossible by
Yet, such a definition is not justifiable from a historical
perspective, because human institutions, including those governing
the right in things and the idea of 'mine' and 'thine',
existed long before the advent of legal systems. Moreover, in
addition to the original meaning of own, proper has also
acquired the moral, or partially moral, connotation of right,
correct, appropriate and very good. (An archaic
meaning is even virtuous.) But it must be admitted that these are
weak arguments for those embracing legalism with regard to property.
What really counts
tho, and what the
legalists cannot do anything about, is that a purely legal definition of
property does not change the subject; it may only force us to
slightly reformulate our statements.
Instead of speaking of "property" we would have to speak of "the right in
things" or "the right to (or not to be excluded from) the use (and nonuse)
of things" and "the right to exclude (and include) others from (and into)
the use of things".
The same legalists may, then, rejoin —as has been done— that
the concept of right itself is nothing but a legal notion (or 'nothing but
nonsense'), but also these right statements can, again, be
reformulated in should statements.
The ultimate question can therefore not be abrogated: The law
does proscribe this and prescribe that, but should it
proscribe this and should it prescribe that?.
The legalist position on property may be less simplistic than
sketched above. It may be asserted that property is indeed just
a legally enforceable claim, but that the enforceability itself
depends on 'society's belief that it is a moral right'. This is
a kind of mixed moral-cultural-legal notion. It is a legal
notion which is also cultural in that the law is based upon a
societal belief (or pattern of expectations), and also moral in
that the belief concerns morality, not just the legal institution as
However, if there are norms with respect to people's relations to things
(norms people can have a moral belief about), then there is also 'property'
in the normative, or at least in the more doxastic, moral, sense.
It is then merely a contingent matter whether 'society' has the right
belief about these norms; and it is then merely a contingent matter whether
the law actually enforces what 'society' believes.
It may do so, but there is no guarantee. Instead of entangling the legal,
cultural and moral threads of thought, conceptual clarity
requires that we should keep them apart, at least until
property has been properly analyzed.
Both in the legal and in the cultural conception property
is a person-made product in that it depends on the existence of
a communal or societal institution, whether legal or nonlegal.
It has been suggested that this institution naturally develops
with the advance of civilization in what has been called "a
spontaneous order", as opposed to a so-called 'organization'. On
this view one could not superimpose whatever institution of
property one prefers upon such a 'functioning spontaneous
order', nor could one start from scratch. This conception of
property, whether correct or incorrect, is basically cultural,
and the suppositions about the possibility of changing the
institution of property in an existing society would be sociological
in the event that they could be supported by scientific
But even if the institution of property could not be modified as 'one'
pleases —and who is 'one' supposed to be?— this modal condition
merely concerns 'property' in a cultural or legal sense.
In a strictly normative sense, property is independent of human
institutions, just as the discretionary right to life or other
rights of personhood are.
This is historically the position of the natural rights theorists too (at
The argument of the legalist philosophers against nonlegal
property was primarily an objection against the property of the
natural rights theorists.
According to the legalist philosophers there simply would not be such a
thing as 'natural property' — where natural, on this occasion,
According to the natural rights theorists the moral claim to certain things
existed prior to and independently of any legal description.
Property was, then, thought of as a right derived from a
fundamental 'law of nature', for example, that 'mankind ought to
be preserved'. Such a 'natural law' might also provide the moral
justification to the poor to take what they need from what is,
conventionally or legally speaking, the property of others, a
right the legalist would even have to deny to those dying of
starvation (unless the law of
'er own country would happen to
recognize this moral right of self-preservation).
Altho we have already dismissed the unprincipled opportunism and crudity
of doctrines of
naturalness, they were right in their
recognition of a nonlegal or noncultural, normative sphere.
If the question whether the law of the land does indeed recognize, for
example, some moral right of self-preservation is of any import at all to
the legalistically minded,
'e must admit that there is more
involved in 'property', and the right to exclude other people, than the
order of law.
It is the difference between property being legal and property being
Property can stipulatively be defined as a factual-modal,
legal or cultural notion, or alternatively, as a normative
notion. We have seen why a stipulative definition does not
change the subject; at the most it alters our vocabulary with
respect to this subject.
What may be devastative is not so much the use of this terminology instead
of that one but the confusion of different notions, and the use of one and
the same term in different senses.
In the case of property this is, first and foremost,
the indiscriminate mixing of the legal, cultural and normative
notions and the employment of the term property in a legal
or cultural sense at one place, and in a normative sense at
another. A theory of property may contain crucial transitions
from the one type of notion to the other without realizing this,
without making this explicit or without defending that people
would always have a moral obligation to obey the law, inclusive
of the law of property. Even when the transition from the one
ontological sphere of property to the other is made explicit,
no defense can be given for an unconditional ethical duty to
abide by the law of property in all circumstances. The minimum
requirement for the morality of such a duty would be based on
the (or some)
metadoctrinal principle, but even
then the law in question must not be afoul of this principle itself.
When a theorist poses the question whether a certain distribution of
property is just or not, 'e can only speak about 'property' in a
(sub)cultural or legal sense.
The distribution of property in a normative sense is always just in a
(Which is not to deny that it may be morally just in one respect, and
morally unjust in another.)
So, a theorist referring to the just acquisition of holdings and the just
transfer of holdings in one breath with the rectification of injustice in
holdings, speaks about property as an ethical right in the first two cases
and about property as a cultural or legal right in the third case.
And when 'e claims that people do not only have a right to
receive but also a right to give, they have to make out for
themselves whether this is an ethical right to give what they
legally own, or to give what they ethically own.
(Furthermore, they will also have to disentangle the
extrinsic from the intrinsic sense of
But if property is supposed to be a legal notion, people can only
have a legal right to give what they legally own; and if a normative
notion, only an ethical right to give what they ethically own, not
Thus, no owner can have the ethical right to devise or bequeath something
to a particular person which at the moment 'e dies returns to what is
normatively speaking the property of the whole community, held in common or
distributed equally among its (living) members.
Those who are concerned about the justice or injustice of
legally or socially distributed property, have been blamed for
committing a kind of 'constructivist fallacy'. Justice would,
then, only be a virtue of individual persons or a characteristic
of their individual actions or rules.
The term could, on this view, not be applied to the outcomes of a whole
society which is —it is insisted— a 'spontaneous order'.
Such a society does not act like 'an organization under the direction of
The main objection is that an attempt to correct the outcome of such a
'spontaneous order' would itself violate justice, because people would have
to surrender part of their property, even if not illicitly acquired.
This objection, however, is obscure and juggles with the
different spheres of property again.
Firstly, if we adopt the distinction between organization and
spontaneous order —and why not disorder?— it is
by definition only an organization (a national government, for instance)
that can try to establish a just property distribution.
If it succeeds, the outcome, that is, a just or less unjust distribution of
property, is the result of an efficient 'organization'; if it does not
succeed, this is 'because' the just distribution of property could not be
the manageable outcome of a 'society'.
Secondly, if surrendering part of one's property and acquisition
which is not illicit refer to legal property, there is nothing
'spontaneous' about this property, and then the law simply defines what a
person's property is, not only at this moment but also at the next one
(and, unfortunately, it may be less then). Provided that
justice is not simply a legal notion, both the 'nonillicit
acquisition' and the 'surrendering' themselves could still be
just or unjust. Yet, the establishment of a state of distributive,
moral justice could not infringe upon what is justly
owned. Of course, it may be that property is a legal concept
in an organizational system and a cultural one in a 'society',
but also this would leave untouched the question whether the
nonillicit acquisition and the subsequent expropriation would be
just or unjust. More importantly, it leaves untouched the
question of what was acquired in the first place (an object
independent of the relevant description? a share in it?).
Finally, theorists are free to stipulatively define justice so that
it designates a praiseworthy quality of people or their actions only, but
this does in no way preclude us from passing a normative judgment on a
whole society, even tho we would —again— have to translate this
judgment by using different words and by making reference to the individual
members of such a society.
For what spontaneously develops might not in all honesty be a prodigy of
beauty; it could be a repulsive monstrosity instead.