Earlier I had posted about the usefulness of medianism for determining appropriate property rights. I had asserted that most state-enforced property rights actually come into being for consequentialist reasons. I have reviewed more literature about the epistemology of property rights and the non-consequentialist theories are pretty weak. For example, LexisNexis has a Law School Review of property rights. The theories that they list are as follows in bold:
- First Possession: Whoever first occupies or possesses something becomes the owner. Is there really ever a case where this actually happened? If so, then it is pretty rare in history. Most land was occupied well before anyone invented individual property rights and even land like Antartica that wasn’t previously occupied is not really owned by the first person to “posses” it.
- Labor-Desert Theory: Property rights are created when people mix their labor with property. This can be identical to the first possession theory because if you define ‘possession’ to mean, ‘do something with’, then the two theories are the same. There are a few cases in history where this has happened, but most of the time when labor is mixed with property, it does not confer property rights. For example, what happened to the labor deserts of the slaves? This theory is a strong justification for reparations for slavery, but I have never heard proponents of this theory support reparations. The Homestead Act would seem to be an application of this theory, but the US government already had property rights before it gave the property to homesteaders, so it isn’t really a perfect example. And the amount of land given was not proportional to the amount of labor produced. It was fixed and predetermined. The Homestead Act was justified by its supporters based on the good consequences it would produce, not some deontological fantasy of deserts.
- Utilitarianism: This is often cited as a theory of property rights, and LexisNexis Area of Law Outlines says that it is “the dominant theory underlying American Property Law,” and William Fisher at Harvard Law agrees. But if anyone ever actually used it in legal arguments, I would be surprised. It is likely that lawmakers think about it as an ideal and imagine that this is what they are doing, but nobody can measure utility. That is why medianism is a useful alternative in practice even though it would be a worse alternative in theory if we were in a utopian world that could really measure utility. What happens to utilitarian reasoning is that it mutates into mutilitarianism. This really IS important in the courts for deciding property rights. It is the next item:
- Utilitarianism: Law and Economics Approach: That is what LexisNexis calls it, but I call it mutilitarianism. “This view essentially assumes that human happiness can be measured in dollars. Under this view, private property exists to maximize the overall wealth of society.” The wealth of society is theoretically measured by adding up “willingness to pay,” but GDP is also often used. This is a goofy ethical system and no philosophers try to justify it as a first-best system, but it is prominent because it is relatively easy to measure, and perhaps because it is skewed to benefit the wealthy classes and so it has a ready-made special interest group with concentrated financial support that backs it.
- Liberty or Civil Republican Theory: This is the idea that private property is necessary for democratic government. LexisNexis says, “the influence of liberty theory has waned” so I won’t add any commentary except to note it as a historical curiosity.
- Personhood Theory: Some items are so intimately tied to a person’s identity that they are essential to the person’s psychological welfare and emotional stability. This theory goes back to Kant and Hegel. Property rights help individuals fully flourish as human beings. This has the same problems as Utilitarianism. It is impossible to measure the emotional development of personhood for a population in the face of competing desires for the same property. Medianism allows for actual measurement. This might have been an important rationale for tribal property rights, but I am unaware of any example of property rights that have come out of this rationale since tribal times. A major problem with this theory is the diminishing marginal utility of wealth. There are myriad examples where property rights maintained the property of the rich who get relatively little emotional development from it and excluded the poor who would develop much more. If you take the personhood theory of property seriously, then you gotta worry about redistribution and the diminishing marginal utility of wealth.
- William Fisher at Harvard Law surveyed theories of intellectual property rights and he adds another consequentialist theory to the LexisNexis list, but this approach is, “less well established and recognized than the other[s]… It does not even have a commonly accepted label.” He calls it “Social Planning Theory” and says it is also known as “Propreitarian Theory”. It is like utilitarianism, except that it adds more factors to the measurement of “social welfare”. Property rights should, “help foster the achievement of a just and attractive culture.” Unfortunately this is even more vague than utilitarianism and even harder to measure. Everyone has a different conception of, “a just and attractive culture”, so it will be even harder to use this for guiding social policy than utilitarianism. Instead we will use simpler rules like mutilitarianism and medianism is a better guide.