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Property - Contemporary Debates

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Within the framework presented here, private property rights are instrumental to achieving a variety of diverse values. This is by far the predominant framework among those who devise national and international property rules. Within the academy, however, the period since the early 1970s has seen two alternative paradigms emerge. Both of these paradigms tend toward libertarianism, which models politics as the interactions among private property owners and argues that property rights should be robustly resistant to state interference. Although these two paradigms converge on a libertarian political program, they reach it by quite different routes.

Academic debates: Nozick and law and economics.

Robert Nozick's extraordinary Anarchy, State, and Utopia (1974) declared that property rights are not instrumental, but are rather morally fundamental. Respect for persons requires, Nozick claims, not only that one respect their rights to life and free movement, but that one respects their rights to their legitimately acquired property as well. A just social order will no more recognize an overall principle for distributing wealth than it will recognize an overall principle for distributing marriage partners. To tax someone's earnings and give these earnings to someone else is on a par with enslaving that person for someone else's benefit—it is a fundamental violation of the taxpayer's rights. The only justifiable state is a minimal one that protects people's property rights against encroachment; beyond this, individuals must remain free to use and sell their property (including themselves) as they choose.

Nozik here develops and radicalizes the theory of the English philosopher John Locke (1632–1704), who argued that private property rights are conceptually and historically prior to political institutions, and that political power cannot legitimately be used to deprive individuals of the rights they have independently of the existence of the state.

The brilliance of Nozick's arguments stimulated an entire generation of philosophers to respond to the idea that property rights might be fundamental. Within the legal academy a second movement was also reaching consistently libertarian conclusions, albeit from a different set of assumptions. This movement, known as law and economics, holds that property rights are indeed instrumental, but that they are instrumental in achieving a single value: wealth. There are actually two separate law and economics theses: one is that the laws as they exist do generally work to maximize wealth, and the other is that the laws should work to maximize wealth. The maverick leader of the law and economics movement, Richard Posner, has advanced both theses.

The law is and should be framed, Posner argues, so as to maintain an efficient allocation of resources—meaning an allocation wherein those who are the most willing and able to pay for the various resources have control over those resources. For most resources, the law can achieve an efficient allocation by assigning strong property rights to owners. If someone besides an owner values a resource more than does the owner, they can then simply buy it from that owner. The main role of the state is again simply to enforce these strong property rights. However, there are some cases in which it is more efficient for the law to assign somewhat weaker property rights. For example, if a public use of a resource would bring more wealth than does a private use (building a highway through private ranches, for example), then the state may simply take the resource without entering into expensive negotiations with each private owner.

This wealth-maximizing paradigm has proved a powerful framework for explaining why the law is as it is within capitalist economies. Yet, clearly, even in capitalist economies not all laws work to maximize wealth, and legal economists have advocated a gamut of reforms that they believe would make these economies more efficient. They have generally argued that efficiency would be increased with stronger property rights, a less redistributive state, and, most notoriously, with a wider application of property rules. For example, legal economists have claimed that treating body parts, votes, and even babies as salable property would increase total social wealth. This last argument is one that leads this discussion out of the academy and into the more general public debate over commodification.

Commodification and progressive property-based arguments.

The question of commodification is: What should be for sale? Disputes have focused on objects and activities that are particularly sensitive for human identity and contemporary morality: blood, organs, psychoactive drugs, sexual services (prostitution) and gestational labor (surrogate-motherhood contracts). The debates over whether these things should be commodities have had a certain structure. On the procommodification side, it is often said that commodification allows those who want something (sex or a baby) to get what they otherwise could not. Moreover, commodification tends to increase the supply of scarce goods (there would be few waiting lists for organ transplants if there were a market for organs). Many pro-commodification arguments simply assert that restrictions on sales (of, for example, drugs) are insultingly paternalistic restrictions on harmless personal freedom. Some also argue that commodification allows the renegotiation of outdated cultural norms: for example, that legalizing surrogacy would show that women are in control of their own reproductive lives. Moreover, it is hard to limit anti-commodification arguments to their intended targets: Why is it wrong to sell one's services as a prostitute, but not as a nurse, a cellist, or a priest?

Anti-commodification arguments have revolved around harms to well-being, status, and community cohesiveness. It is said that allowing markets in, for example, organs would inevitably lead to exploitation of the poor and the desperate, and so exacerbate existing social inequalities. Moreover, legalized prostitution and surrogacy only reinforce the stereotypes of women as properly sexually subordinate or as baby factories. More subtly, it is argued that commodifying people's bodies, or their sexual or reproductive lives, would instill in them a degraded self-image as they came to view themselves as repositories of economic value instead of beings of dignity. Finally, as English social theorist Richard Titmuss found with blood donation, a society that gives gifts instead of making sales fosters the kind of altruism that is crucial for holding a community together.

Anti-commodification arguments have been one standard of the political Left during a period in which the political Right has eliminated everything from state ownership of industry to rent control. The collapse of Marxist ideology, and a new popular presumption against traditional taxation and redistribution schemes, has disrupted leftist politics. Only slowly is the Left learning to deploy property arguments toward progressive causes. One example is in environmental regulation, where it is argued that "dirty" industries should be held liable for the harms (pollution) that their property causes. The Peruvian economist Hernando de Soto, has launched a different kind of progressive-based argument from the Right by claiming that strengthening the property laws in developing countries would allow the many poor who work in the "shadow" economy to take advantage of the resources (houses, land) that they now control but cannot use as legal assets.

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