28 October 2015


'Property's Sovereignty' by Larissa Katz in Theoretical Inquiries in Law (forthcoming) comments
Freedom is an organizing idea in many contemporary accounts of property. But there are at least two ways to think about property as a freedom-based right. One way is to define property in terms of our personal freedom to advance our life-plans free from interference by others. Property on this view is a position of negative freedom, a right against interference by others, that puts owners in the best position to capture whatever benefits may be had from a thing. On this view,  property ensures that a thing is wholly available for the owner's purposes by excluding all others.
There is a second freedom-based way to understand property not in terms of negative freedom but in terms of sovereignty: property gives owners the exclusive authority to set the agenda for things - an agenda to which others must defer. This authority is a kind of sovereignty, for owners need not defer to any other private person in setting the agenda for things but they may claim deference from all. The agenda-setting authority vested in the office of ownership is perpetual, exclusive, non-reviewable and, in its sphere, subordinate to none. Freedom is at the heart of ownership here too, but it is a relational freedom: owners relate to others their decisions about things, and they do so as sovereigns, whose decisions command deference.
These two ways of thinking about property have important implications for property╒s status in our legal order. Freedom-based accounts of property generally suggest an important, even essential, place for property in the basic structure of society: property matters because freedom matters. But the challenge for freedom-based accounts of property is to make sense of the state's significant power to restrict the personal freedom of owners to advance their life-plans through ownership. I will argue that the first way to think of property, as a right to exclude leaving owners free to enjoy the benefits of property, cannot meet this challenge: it would treat even basic exercises of state power to tax, regulate and expropriate property as a diminution of property, even if a justified one. If the immunity of owners to these state powers is the measure of the deference our property rights command from the state, then we can see why there are very few legal and political philosophers left who think private property in itself commands any special deference from the state: few would deny owners liability to taxation, regulation and expropriation.
The sovereignty?based account of ownership that I advance here offers a new understanding of property to meet this challenge : it explains how each - owner and state - is sovereign in its sphere. Most of this paper will be an argument in favour of this second conception of property. But this paper also addresses a new puzzle of its own: If property is centrally about the sovereign authority of owners to make decisions about the agenda for their property, then what connection is there between ownership and the fruits or profits that owners are at liberty to derive from their property? I will argue that there is an important connection between ownership and certain benefits or value derived from owning, but it is not an essential one . Instead, it is best accounted for by a separate principle of accession, with its own rationale. As we will see, not only does this principle of accession account for the allocation of value to owners but also for the allocation of certain costs or burdens to owners, too. Traditional property scholars have argued that the greatest threat to property rights is the taking of value from owners through taxation, regulation or expropriation. But by distinguishing the principles of sovereignty and accession, we see how the state can take value from owners without attacking their fundamental rights as owners.
Property, then, is an essential feature of our legal order, but not at all in the way that many property essentialists claim. It is essential as a mode of allocating original (i.e., non-delegated) sovereign authority. The existence of this form of private authority is (I will argue) a constitutional choice about the sources of authority in the political order: private ownership makes certain decisions that are the exclusive prerogative of a private office exercising private authority, just as other decisions are the prerogative of officials or their deputies exercising public authority (e.g., legislators, police officers, judges, bureaucrats). In property we have a distinct source of authority over private relations that is thus an aspect of our constitutional identity (much as federalism, establishing distinct and irreducible sources of public authority, does in a federal state.) I should say right away that I am not talking about a written constitution but rather the rules in our political organization that establish and regulate authority. To respect and promote property rights, from this viewpoint, means the vindication and perhaps even defence of the constitutional choice to establish a source of authority over private relations that is separate from and irreducible to public authority. We gain better insight into proper state-owner relations by concentrating on this more substantial basis - a matter of constitutional identity - for the sovereign status of private property.
While my account explains why ordinary state exercises of the power to regulate, tax or expropriate does not diminish property's sovereignty, it also yields insight into the kind of state activity that might: the state-backed subordination of owners to the private choices of others about the thing .
In part I, I offer an account of the kind of private authority that owners have. Ownership, I will say, is fundamentally constituted by owner's authority over private relations with respect to their thing. This is what I have called their agenda-setting authority. This agenda-setting authority, exercised through the office of ownership, is distinct from the benefits and burdens tacked on by the principle of accession. The ownership strategy puts agenda?setting authority in private hands. But questions about whose hands, and to what advantage, are another matter altogether.
In part II, I will show how and why private authority is distinct from and irreducible to public authority. I will argue that the private/public distinction reflects distinct modes of legitimating authority in our constitutional order: public authority exercised through public offices depends for its legitimacy on its univocality. It must be capable of standing as our common decision. Private authority by contrast makes no such claims of univocality. When the owner sets the agenda for his property, he makes no pretence of having come up with our decision. Rather, it is his decision that we are all bound to respect because of his position . We attribute authority to private actors just in virtue of their standing as owners. A genuine and validly made decision about what constitutes a worthwhile use of a thing claims legitimacy just in virtue of the decision-maker's standing to say so  in relation to others. This private authority is absolute although not in the ordinary sense of that word (i.e., unrestricted rights to a thing and proceeds); rather, ownership authority is absolute in a much older and more illuminating sense: in its exercise, owners are absolved from the normative constraints that legitimize public decisions. Owners are free to act on their private judgment about what ought to be done with a thing.
Finally, in part III, I will argue that the elimination of this private authority represents not just one political choice among many (although the restriction of the owner's choice-set and the benefits of owning, through regulation, taxation, expropriation, does); rather, the elimination of private authority to govern private relations with respect to things would represent a fundamental challenge to the constitutional identity of the political order we have. A legal order that establishes distinct and irreducible sources of authority with respect to people has a constitutional identity that is distinct from a legal order that acknowledges just one or the other kind of authority.
None of this means that property is a constitutional necessity for a liberal society that respects our claims to personhood anymore than federalism is (a state may allow immediate rights to consume or to use a thing for some purpose, but allocate no authority to set an agenda for the thing that others are required to respect). But property, as a basic source of authority in our constitutional order, forms the constitutional identity we have. Its abolition is at the same time the abolition of that order.