The Normativity of the Private Ownership Form

Published date01 November 2012
AuthorAvihay Dorfman
Date01 November 2012
DOIhttp://doi.org/10.1111/j.1468-2230.2012.00934.x
The Normativity of the Private Ownership Form
Avihay Dorfman*
One of the most acute charges against private property observes that ownership generates a
trespassory duty of exclusion that far exceeds the requirements of a commitment to values such
as freedom and well-being,and accordingly there exists an analytical mismatch between the form
of protecting ownership and the functions that this protection may serve.This article develops a
novel account of ownership’s normativity,maintaining that, apart from the functions it may render
to external values, the form of ownership is in itself a source of value,in vir tue of the society it may
engender between free and equal persons. Any gap between the form and the function of
ownership need not plague private ownership,because the functions of ownership do not exhaust
the explanation of its good.The formal core of pr ivate property is a distinctively social one, even
in the most isolated case of trespass to property.
SETTING THE STAGE: THE CHARGE OF
NORMATIVE ARBITRARINESS
The charge of normative arbitrariness that I shall explore at this stage of the
argument arises from the gap between the right to private ownership and its
grounds. It will prove helpful to introduce this charge by reference to the familiar
analogy between the two kinds of trespass tort – to the person and to the
property of another.As it is often observed, the duties against committing trespass
upon the person and property of another share an almost identical structure.Both
duties may, in principle, extend to capture even a prohibition against making an
unauthorised, though harmless contact with the body and property of another,
respectively.1
However,the structural similar ity between the two torts is,at best, just that – it
merely points out the morphology (or characterisation) of trespass torts. It becomes
notorious, let alone a form of ‘a serious travesty,’ insofar as it purports to do the
normative work of explaining how it is that the tort of trespass to property protects
the right-holder with a more or less similar severity and strictness as the tort of
trespass to the person of another does.2Indeed, whereas there is a strong sense that
harmlessly using the person of another is, nonetheless, a form of wronging that
person by treating her as a means rather than also as an end itself,nothing of this sort
of explanation can be extended as a matter of course to make sense of the way in
which property is protected by the common law tort,including in particular cases
where using the property of another is inconsequential.
*Tel Aviv University Faculty of Law.I would like to thank Eric Claeys, Hanoch Dagan,and the MLR
anonymous reviewers for helpful comments on earlier drafts.
1 See eg Ashby vWhite (1703) 92 E R 126, 137 (KB) per Holt CJ;J. E. Penner,The Idea of Property
in Law (Oxford: OUP, 1997) 27–28, 74.
2 J. Gardner and S. Shute,‘The Wrongness of Rape’in J. Horder (ed), Oxford Essays in Jurisprudence
(Oxford:OUP, 4th Series, 2000) 193,203. See also the discussion by J.W. Har ris,Property and Justice
(Oxford: Clarendon Press, 1996) chs 11–12.
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© 2012The Author.The Modern Law Review © 2012The Moder n LawReview Limited. (2012) 75(6) MLR 981–1009
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
Against this backdrop, one of the most powerful challenges to the right to
private property, especially private ownership,has often been cast in ter ms of the
normative arbitrariness that lies at the moral center of the right, especially the
form that the right happens to take.3As many and diverse observers, including
Blackstone and Marx, have noted, the right vests in private persons’ substantial
normative powers over other persons with respect to external objects that
seemingly extend far beyond its underpinning values,whatever they are.4On this
observation, a property right-holder can exercise her r ight even when exercising
it cannot be explained by reference to the substantive values that may have
grounded this right to begin with (such as realising freedom or promoting
well-being through using one’s objects).5Thus, the unusual authority possessed
by private owners, the authority not just to control an object but more funda-
mentally to fix the normative standing of others in relation to it,6might run out
of justification, but, nonetheless, exercise the especially powerful draw character-
istic of rights on others, who are non-owners.7
More specifically, the charge of normative arbitrariness picks out an analytical
mismatch between two ideas of freedom that arise in connection with private
ownership.First, within limits, owners enjoy the freedom to deploy their objects as
they see fit. Classical liberal champions of equal freedom such as John Locke and
Immanuel Kant have begun their respective accounts of property rights in a state
of nature by arguing for the necessity of a property right securing the freedom-
to-use of right-holders. And second, modern liberal societies sustain freedom-to
by protecting property owners’ freedom from the interference of others.8The
mismatch arises because freedom-from is not – and can never be – an analytic
feature of freedom-to.The protection of the latter by the for mer is over-inclusive,
as explained a moment ago, frustrating attempts to explain the duty to defer to
3 As will become clear in due course, I do not argue that private owner ship’s special authority is,in
fact, arbitrary or otherwise illegitimate. Rather,the point of the argument in the fir st part of the
paper is that those who seek to account for the authority in question by resort to functional
explanations run into the difficulty I call ‘normative arbitrariness’.
4 cf 2 Bl Comm 1; Karl Marx,‘On the Jewish Question’ repr inted in L.H. Simon (ed), Karl Marx:
Selected Writings (Indianapolis, Ind: Hackett Publishing Company, 1994) 16–17 (private ownership
is ‘the right to enjoy and dispose of one’s possessions as one wills,without regard for other men and
independently of society’).
5 For incisive general discussions concerning the gap between a right and its underlying values, see
J. Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) 36–43; F. M. Kamm, Intricate
Ethics (Oxford: OUP, 2007) 247. It is an open question, however, whether both of these
discussions – that take their paradigm case to be freedom of speech – could be extended to
capture private ownership.
6 I develop this analytical account of ownership in A. Dorfman,‘Private Ownership’ (2010) 16 Legal
Theory 1. The present argument seeks to supplement the analytics of private ownership with its
special normativity.
7 Throughout, I shall use the term non-owners in the broadest sense to capture other proper ty
right-holders as well as the propertyless.
8 This distinction has recently been made by the Supreme Court in Bocardo SA vStar Energy Onshore
Ltd and another [2011] AC1 at [26] (distinguishing between protecting a person against ‘interference
with the use of the land’ and protecting her‘ownership’), per Lord Hope. Lord Walker dr ives this
distinction home by observing that the tortious activity on the part of the trespassers ‘did not . ..
interfere one iota with [the right-holder’s] enjoyment of its land ...’ibid at [54] (internal citation
omitted).
The Normativity of the Private Ownership Form
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
982 (2012) 75(6) MLR 981–1009

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