Natural Property Rights: Where They Fail

1998 ◽  
Vol 15 (2) ◽  
pp. 283-302 ◽  
Author(s):  
Robert Ehman
Keyword(s):  
Property Rights ◽  
Initial Conditions ◽  
Social Institutions ◽  
Initial Position ◽  
Natural Rights ◽  
Individual Freedom ◽  
Natural Property ◽  
Equal Rights ◽  
Moral Foundation ◽  
The Will

For classical liberals, natural property rights are the moral foundation of the market and of individual freedom. They determine the initial position from which persons legitimately make contracts and assess the validity of collective action. Since they establish the initial conditions of legitimate agreements, they cannot be dependent upon agreements. Persons possess these rights apart from social institutions. Natural rights typically not only prohibit interference with a person's body and mind but also forbid interference with a person's appropriation of unowned natural resources and with his freedom to do as he chooses with the products that he makes from them, so long as he does not infringe upon the equal rights of others. These rights prescribe, as Locke put it, that persons be free “to order their Actions, and dispose of their Possessions, and Persons as they think fit … without asking leave, or depending upon the Will of any other Man”.

scholarly journals “Champion Man-Hater of All Time”: Feminism, Insanity, and Property Rights in 1940s America

2021 ◽  
pp. 75
Author(s):  
Magdalene Zier
Keyword(s):  
World War Ii ◽  
Property Rights ◽  
Law School ◽  
Law Students ◽  
Historical Background ◽  
Equal Rights Amendment ◽  
Equal Rights ◽  
Credible Threat ◽  
The Will ◽  
Social Views

Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist. This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy.

Sufficiency and freedom in Locke’s theory of property

2015 ◽  
Vol 17 (2) ◽  
pp. 152-173 ◽  
Author(s):  
Daniel M. Layman
Keyword(s):  
Property Rights ◽  
Natural Law ◽  
Natural Rights ◽  
Natural Property ◽  
Arbitrary Power ◽  
Number Of Authors

It is traditional to ascribe to Locke the view that every person who acquires natural property rights by labouring on resources is obligated to leave sufficient resources for everyone else. But during the last several decades, a number of authors have contributed to a compelling textual case against this reading. Nevertheless, Locke clearly indicates that there is something wrong with distributions in which some suffer while others thrive. But if he does not endorse the traditional proviso, what exactly is the problem? In this paper, I offer a solution to this puzzle. I argue that according to Locke, once people use their natural rights to acquire large properties, many individuals are unable to enjoy the material and moral wellbeing, or “preservation,” that is the end of natural law. For even if such large properties pose no problem for material preservation, they foster arbitrary power that offends against moral preservation.

Implications

2017 ◽  
Author(s):  
Karl Widerquist ◽  
Grant S. McCall
Keyword(s):  
Property Rights ◽  
The State ◽  
Natural Property ◽  
Government Failure ◽  
State Of Nature ◽  
Best Response ◽  
Lockean Proviso ◽  
Definition Of ◽  
Taking Action ◽  
Disadvantaged People

Earlier chapters of this book found that the Hobbesian hypothesis is false; the Lockean proviso is unfulfilled; contemporary states and property rights systems fail to meet the standard that social contract and natural property rights theories require for their justification. This chapter assesses the implications of those findings for the two theories. Section 1 argues that, whether contractarians accept or reject these findings, they need to clarify their argument to remove equivocation. Section 2 invites efforts to refute this book’s empirical findings. Section 3 discusses a response open only to property rights theorists: concede this book’s empirical findings and blame government failure. Section 4 considers the argument that this book misidentifies the state of nature. Section 5 considers a “bracketing strategy,” which admits that observed stateless societies fit the definition of the state of nature, but argues that they are not the relevant forms of statelessness today. Section 6 discusses the implications of accepting both the truth and relevance of the book’s findings, concluding that the best response is to fulfil the Lockean proviso by taking action to improve the lives of disadvantaged people.

scholarly journals Challenging the State: Devolutionary Tenure Transitions for Saving and Expanding Forests

Human Ecology ◽  
2021 ◽  
Author(s):  
Liz Alden Wily
Keyword(s):  
Rural Communities ◽  
Property Rights ◽  
Protected Areas ◽  
Forest Cover ◽  
Biological Diversity ◽  
Convention On Biological Diversity ◽  
Property Relations ◽  
The Will ◽  
Customary Land

AbstractI address a contentious element in forest property relations to illustrate the role of ownership in protecting and expanding of forest cover by examining the extent to which rural communities may legally own forests. The premise is that whilst state-owned protected areas have contributed enormously to forest survival, this has been insufficiently successful to justify the mass dispossession of customary land-owning communities this has entailed. Further, I argue that state co-option of community lands is unwarranted. Rural communities on all continents ably demonstrate the will and capacity to conserve forests – provided their customary ownership is legally recognized. I explore the property rights reforms now enabling this. The replication potential of community protected forestlands is great enough to deserve flagship status in global commitments to expand forest including in the upcoming new Convention on Biological Diversity (CBD).

scholarly journals A DEFENSE OF HUMEAN PROPERTY THEORY

Legal Theory ◽  
2021 ◽  
pp. 1-34
Author(s):  
Ira K. Lindsay
Keyword(s):  
Political Philosophy ◽  
Property Rights ◽  
Distributive Justice ◽  
David Hume ◽  
Prima Facie ◽  
Natural Rights ◽  
Social Cooperation ◽  
Scarce Resources ◽  
Moral Claims ◽  
Humean Theory

ABSTRACT Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.

Kant’s Naturrecht Feyerabend, Achenwall and the Role of the State

Kant Yearbook ◽  
2021 ◽  
Vol 13 (1) ◽  
pp. 49-71
Author(s):  
Mike L. Gregory
Keyword(s):  
Political Philosophy ◽  
Sustained Attention ◽  
Natural Law ◽  
The State ◽  
Natural Rights ◽  
Law System ◽  
Role Of The State ◽  
The Will ◽  
Subjective Rights

Abstract Kant’s Naturrecht Feyerabend has recently gained more sustained attention for its role in clarifying Kant’s published positions in political philosophy. However, too little attention has been given to the lecture’s relation to Gottfried Achenwall, whose book was the textbook for the course. In this paper, I will examine how Kant rejected and transforms Achenwall’s natural law system in the Feyerabend Lectures. Specifically, I will argue that Kant problematizes Achenwall’s foundational notion of a divine juridical state which opens up a normative gap between objective law (prohibitions, prescriptions and permissions) and subjective rights (moral capacities). In the absence of a divine sovereign, formal natural law is unable to justify subjective natural rights in the state of nature. In the Feyerabend Lectures, Kant, in order to close this gap, replaces the divine will with the “will of society”, making the state necessary for the possibility of rights.

Equal Rights, Privilege, and the Pursuit of Inequality

2017 ◽  
Author(s):  
Richard D. Brown
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
Property Rights ◽  
The United States ◽  
Political Order ◽  
First Century ◽  
People Of Color ◽  
Equal Rights ◽  
Individual Property ◽  
Nineteenth Century America

While cherishing ideas of equal rights and equality, Americans have simultaneously sought inequality. The Revolution of 1776 committed Americans to the idea of equal rights, but just as fundamentally it dedicated the United States to the protection and increase of individual property and the power to direct it to heirs. Although equal rights and individual property rights have proved compatible with religious and ethnic equality, social and economic inequality, both meritocratic and inherited, have been integral to the American social and political order. Moreover, based on the emerging biologies of race and sex, the idea of equal rights for people of color and for women faced new barriers in nineteenth-century America and beyond into the twenty-first century.

THEMORAL BASIS OF MODERN LEGAL NIHILISM

2020 ◽  
Vol 65 (4) ◽  
pp. 125-129
Author(s):  
OLEG A. NESTEROV ◽  
Keyword(s):  
Social Institution ◽  
Practical Experience ◽  
Moral Order ◽  
Modern World ◽  
Philosophical Study ◽  
Moral Foundation ◽  
Moral View ◽  
Moral Subject ◽  
The Will ◽  
Normative Order

This article contains a philosophical study of the moral basis of modern legal nihilism. Usually legal nihilism is understood as a negative or indifferent attitude of individuals or social groups to law as a social institution. The universal and necessary nature of this phenomenon cannot be revealed by giving even the broadest list of active causes of its occurrence and spread. This nature of legal nihilism can be understood through systematic knowledge the idea of the moral spirit.Within the limits of this article, only the nearest spiritual and practical basis of the legal nihilism is revealed. Further consideration of the problem proves that this basis is the freedom of moral subject, the moral view in general, which is an effective principle of the form of the modern world. From a moral point of view only the autono- mous will is truly free and, therefore, really moral. For it is subordinate to a universal law, rooted in the «moral self» of the will itself. Thus the autonomy of the will is recognized as the true and only law of morality, which is identified with real moral order. Recognition of the autonomy of the moral will as the highest principle of the practical spirit made the moral view an indisputable criterion for evaluating any existing moral order. Thus the reflection of the practical experience of modern times laid the moral foundation of legal nihilism. For from this moment on, any external authority, every normative order has come under the initial suspicion of the moral subject, Every objective normative order came to be considered by him as something that has only a conditional significance. All this reality now requires legitimation by the subject of moral freedom, justification before person’s deep belief in what is rational and moral.

Bentham, Jeremy (1748–1832)

2018 ◽  
Author(s):  
Ross Harrison
Keyword(s):  
Property Rights ◽  
Constitutional Law ◽  
Political Action ◽  
Central Element ◽  
Political Influence ◽  
Natural Rights ◽  
Legal Rights ◽  
Jeremy Bentham ◽  
Good System ◽  
Primary Unit

Jeremy Bentham held that all human and political action could be analysed in terms of pleasure and pain, and so made comprehensible. One such analysis is how people actually do behave; according to Bentham, seeking pleasure and avoiding pain. Another such analysis is of how they ought to behave. For Bentham, this is that they should maximize utility, which for him is the same as producing the greatest happiness of the greatest number, which, again, is the same for him as maximizing pleasure and minimizing pain. His chief study was planning how there could be a good system of government and law; that is, how laws could be created so that people being as they actually are (seeking their own pleasure) might nevertheless do what they ought (seek the greatest pleasure of all). The instruments which government use in this task are punishment and reward, inducing action by threats and offers. For Bentham, punishment is done not for the sake of the offender, but to deter other people from doing the same kind of thing. Hence on his theory it is the apparent punishment which does all the good, the real punishment which does all the harm. Bentham thought that the primary unit of significance was the sentence, not the word. He used this idea to produce profound analyses of the nature of law and legal terms, such as’ right’, ‘duty’ or ‘property’. These are what he calls names of fictions – terms which do not directly correspond to real entities. However, this does not mean that they are meaningless. Instead, meaning can be given to them by translating sentences in which they occur into sentences in which they do not occur. Thus legal rights are understood in terms of legal duties, because sentences involving the former can be understood in terms of sentences involving the latter; these in turn can be analysed in terms of threats of punishment or, again, pleasure and pain. This gives sense to legal rights, but sense cannot be given in the same way to natural rights. For Bentham, we have no natural rights and the rights that we do have, such as property rights, are created by government, whose chief task is to protect them. Bentham also worked out how people could be protected from government itself, designing an elaborate system of constitutional law in which representative democracy was a central element. Bentham invented the word ‘international’, and when he died he had an international legal and political influence. His chief influence in philosophy has been as the most important historical exponent of a pure form of utilitarianism.

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