While finishing my B.A., I got very interested in property rights. In my Marxism class I wrote a big paper comparing Marx, Hobbes, and Locke on property (and got dinged for (1) not supporting Marx as the greatest property rights theorist ever, and (2) calling Hobbes a liberal--I guess that's what happens when you have an actual Marxist for a teacher). For my first couple of year of grad school I continued that interest, reading everything I could on property, from the economics literature (really good stuff) to the the contemporary political philosophy literature (mostly rather shallow and ideological), to the legal literature (muddled, confused and ideological) to all the relevant Supreme Court cases (muddled but a source of continuing fascination). The most fascinating things I stumbled across were a chapter on property rights in the old testament prophets and an article on the development of property rights--in the absence of contract and law enforcement--in the California gold rush. I eventually realized that it would be just about impossible to make a decent scholarly career out of studying property, so I mostly set it aside. But I'm still geeky enough to get excited about property rights issues.
Let me clarify my position. As a libertarian, I'm very pro-property rights. But that doesn't mean anything unless we actually define what property rights are, and that's, I think, where most libertarians fall short. Being too much of a positivist in just about all ways, I don't have patience with the concept of a natural right to property. It smacks too much of that single-individual-alone-in-a-state-of-nature-mixing-his-labor nonsense. We're social animals. Our pre-human ancestors were social animals. So the proper place to begin analyzing things is with the unavoidable fact that every human is born into a web of social organization that predates him/her, and without which he/she would not exist and would not be fully human. Rights are social creations, for good or ill, and that includes property.
The concept of property itself requires a social context. What would it mean to be alone in a state of nature, to pick up some apples, and to yell to the socially empty spaces around me, "This is my property!"? I've got the apples and there's nobody to challenge my control over them--what does the concept of property rights add to that? Now assume there is someone else there--just one person--and they take the apples from me. Have they harmed me? Sure. Have they violated my rights? Again, it's hard to see what that would actually mean. Who do I turn to redress? God may punish the apple-taker with eternity in hell, but that hardly makes me whole. (And that's setting aside the questions of why mixing one's labor or being first-in-time create unconquerable rights, which, however much natural rights theorists may love them, remain logically problematic.)
Now that surely puts me at odds with most libertarians, but so be it. It's not that I dislike the concept of natural rights, it's that I just can't see any actual evidence that they exist. Demonstrate their reality to me, show me at what point in the evolutionary development of homo sapiens sapiens they came into being, and I'll accept them.
On the other hand, if by natural rights we accept the Kuznickian approach that they are things we seem to naturally have an instinct for, then I could probably accept property as a natural rights concept much more easily than most other natural rights claims. There doesn't seem to be a universal instinct for rights of conscience (sad to say), rights of political participation, etc. But there does seem to be a universal, or nearly so, instinct for property.
That brings me to my definition of property, which I cadged from, IIRC, a 1967 article by the great economist Harold Demsetz. (Looking back, I should have known at that point that I should dump law for economics, but it took a couple more years to figure that out, during which time I at least got a decent education in American constitutional law.) To paraphrase, since I don't have the article at home with me:
Property rights are socially sanctioned rights to use resources.
That apparently bland definition has great analytical power. First, it pushes us past material objects in two ways. One, it forces us to recognize that my car is not property: the socially agreed upon rights I have in the use of that car are property. After all, what good would it be to own a car if I had no use rights? No right to exclude others? No right to transfer ownership of it to another party? In casual speak, there's nothing wrong with talking about my car, house, or computer as property, but when we need to be analytical we have to get beyond that casual everyday speech. In other words, "property rights" is actually redundant--the property inheres in the rights. You think that's obvious? It wasn't to my po-mo con law prof, and if you take a survey, I think you'll find a lot of people who have a hard time wrapping their mind around the idea that the physical object itself is not property.
Second, it forces us to consider what we mean by resources, and it's easy to recognize that not all resources are material. This is where intellectual property rights come from. Some lefties like to sneer that there can't be a natural right to intellectual property because you can't hold it in your own grubby little hands and keep others from it. Once the idea is promulgated, all others can make use of it. I can stand on the front porch of my house with a shotgun and keep you out, but I can't stand on my idea with a shotgun and keep you from thinking it, repeating it, extending it to new applications, etc. For once the lefties are right. Or half-right. A claim to a natural right in an idea is, if not entirely silly, at least entirely pointless. But you can have a socially sanctioned right to exclusive use of that idea. It may not be easier to defend against thieves, but there's no inherent silliness in saying that the social group, in its incarnation as a political unit, recognizes that you alone have the right to use that idea.
And nearly everything can be a resource. What, can't have a property right in the air? Sure you can, here's your pollution permit. Can't have a property right in the human genome? Sure you can, nobody else is allowed to make use of that knowledge. That's not to say all potential grants of property are a good idea, just that they're possible, regardless of how immaterial the object of them is.
The word "use" also opens up analytical pathways. What is a use? We, in the U.S. at least, tend to think in absolutist terms when we consider property. "This is mine, by god, and nobody else can use it, nobody else can tell me how to use it, and I can use it in any goddam way I want!" My colleague DAR, living in Texas, may not be able to walk from his office to the drinking fountain without hearing that sentiment. But a cursory glance over the world of property rights quickly reveals that absolute use rights are almost never--perhaps simply never--actually granted. I can't use my house and/or yard as a shooting range (even if I keep all the bullets from exiting my property), I can't put a 300 foot high radio tower in my backyard, I can't operate a solid waste landfill, I can't grow marijuana, I can't use my car as a traveling billboard advertising child pornography, and if I don't keep it in decent repair I may not even have the right to operate it on a public roadway.
No one seriously believes that any and all use rights attach to any given resource. It's when too few use rights attach, when too many are denied, that we claim it's an illegitimate infringement on our "rights." But that's really an argument about reasonableness, not about the basic legitimacy of denying some of the innumerable imaginable use rights.
And that recognition that not all rights attach to a resource opens up vast possibilities for distinguishing among different use rights, and how they can be assigned. In fact the variations are theoretically endless. But allow me to deign to give infinite examples, and provide only a few.
- In my rights study I read about a South Pacific Island society whose primary means of subsistence was fishing. Canoes were the individual property of a single person, but if that person wasn't using his canoe that day, anyone else had use rights in it, which the owner could not forbid.
- Companies frequently buy naming rights to stadiums. They don't own the stadium, they don't necessarily get to enter the stadium, but they have a legally enforceable right to put their name on it. But that right normally is not perpetual; it's time limited. But that's not a property right, one of my grad school friends argued, that's just a contract. Exactly, contracts frequently transfer control over particular uses of particular resources, but the property right is real. It's socially recognized and enforceable. As long as Lucas Oil has the property right in the name of a certain football stadium in Indianapolis, Pennzoil is excluded from that right, even if the stadium owner would like to give that right to them.
- My po-mo law prof scoffed at my notion that she didn't have a property right in her office. She equated property with legal title. But she had very specific, albeit limited, use rights. No one else was allowed to use that office. The professor down the hall couldn't store his books there, or even just sit in there and think, without her permission. The department couldn't turn her out of the office without providing a certain compensation--i.e., another office. True, the university actually "owned" the office, had legal title to it, and so her rights always had a tentative quality to them, but that doesn't violate the concept--it fits right into it.
- The Iroquois had private hunting preserves. Only the owner could hunt on the land. But all others had an easement to cross it in order to reach their own hunting lands.
- A very lousy, but popular, book on American political thought claims that the Iroquois didn't have private property, because they lived in communal houses. Not so. They lived in extended-family houses, an intermediate point between private and wholly communal property. And although I don't know factually, I'd have no qualms betting that within each house each person had their particular space.
- In some places, coalmine owners have the right to cause surface subsidence by taking out enough coal that the ground above slumps. Property owners above do not have a right to not have their land subside due to someone else's activity. But the coalmine owners normally do not have the right to cause the ground to actually cave in. The surface property owner has the right to not have the ground actually drop out from under them.
- In Japan, some cities have granted sunlight rights. If I receive sunlight in my window, I have a right to keep receiving it, and if you want to build next door you can't block my access to sunlight.
These examples should make it clear that resources can be divvied up in any imaginable way, and the corresponding rights divvied out in any imaginable way.
Which brings us to two readers who don't get it. The first is a now-banned commentor, D.S. Heersink who, on his own blog, objects to my colleague DAR's claim that "this blog is our property (Well, actually it is Mr. Kuznicki’s property...). Mr. Heersink seems to believe that there can be no property rights in the internet. Obviously that doesn't stand up to scrutiny. The internet is a resource, or more accurately, a set of resources, and somebodies own the various resources that make up the internet, so obviously its theoretically possible for somebody to own it, the whole shebang. We'd just have to agree as a society (presumably a global society, in this case) that we were granting all rights in the internet to, oh, let's say, me. Or, perhaps Bill Gates is actually rich enough to actually buy up all the rights to the internet? Sure he'd have to convince the federal government to sell whatever it is they own as internet infrastructure (you can see how little I know about what the internet is actually constituted of), but if it helps pay down the debt, perhaps they'd bite. Probably not, but what would happen is not theoretically interesting, only what could happen.
But more specifically, since nobody at PL actually claimed to own the internet (a slight exaggeration on Mr. Heersink's part), but only to own a particular blog, we can actually research whether the claim that Jason Kuznicki owns this blog is true. There's a little thing called whois.net, in which you can look up the registrants of domain names. The registrant pays a fee for a domain name, and then they have the property right in the use of that domain. Turns out, Jason Kuznicki does own the rights to the domain, positiveliberty.com. Who knew?! He does not have absolute rights in the domain. He can lose them if he fails to continue to pay a registration fee, in which case they effectively become abandoned property, like walking away from your house and not paying the property taxes anymore. And he can't use them to solicit contract killers or to advertise weapons-grade plutonium for sale, but that's par for the course with our socially recognized resource use rights. I own a couple of domains, too. You can look them up: ipsinet.org and jhanley.net. There's my name as the registrant, which means the property right in those domains belongs to me. So there.
The other recent comment was by Collin Brendemuehl, who throughout the linked thread seemed to assume that private property was an absolute right that one could not surrender. He simply could not seem to come to grips with the idea that a property owner could in fact sign away some of his rights contractually. But let's go back to the stadium naming example. The Indiana Stadium and Convention Building Authority (ISCBA, a state agency)owns the title to Lucas Oil stadium has signed away the right to name it. It can't, legally rip down the Lucas Oil Stadium sign, and put up one that sys ISCBA stadium. It can't sell me the right to climb up there and hang a sign saying, "James Hanley Stadium," because it signed away the right to control the name for a period of 20 years. After 20 years, the right reverts back to them. Of course they could also have signed away that right in perpetuity, but I'm sure they would have asked for a lot more than the $122 million Lucas Oil paid for a 20 year right. That's about $6 million a year, which indicates it's a pretty valuable right. But I'd bet they didn't get an absolute right--I suspect they'd have had to pay a lot more for an unlimited right to give it any name they want whenever they want, for example, putting up a new sign before the next Colts-Patriots game renaming it "Tom Brady Sucks Stadium," then changing it next week to the "Drop Trou Stadium." (Presumably, while that right would cost more, it would be less valuable to a potential purchaser, so while theoretically possible, we're unlikely ever to get the pleasure of seeing this happen.)
That's all to say that a proper understanding of what property rights are clears up the confusion about whether a church can in fact sign away its rights to discriminate among users of its property. It sure can. Heck, a church could sign a contract with a strip club allowing the club to have live nude dancing in the sanctuary during Sunday evening service. Or selling naming rights to the Anton LeVay Fan Club, so they can put up a big sign saying the "Anton LeVay Church of Satan Church of God in Christ." I'm not trying to offend, although I am trying to shock, because sometimes shock is the shock of recognition, that sense of, "Oh my god, that is possible, even though it's heinous!" As much as any of these signings away of rights would violate the church owners' religious beliefs, none of them would violate their rights. There's a reason why churches don't do these things, even if they could use the money, but they could do them.
In the Mount Laurel case, the Ocean Grove Camp Meeting Association went after the money. There's nothing wrong with that. In fact the whole thing seems like it had been a pretty good deal for all involved, for a long time. They saved some money on their property taxes, and who can criticize them for that? (This wasn't a render unto Caesar issue, they paid all the taxes they were legally obliged to pay.) And the public got use of a property that otherwise might have been off-limits to them. I'm sure that at the time the church made the deal no one was thinking about the possibility of a gay marriage, so it would be wrong even to say that they were naive. But sometimes circumstances change, and contractual conditions remain the same. As I said on that post, buyer's remorse is not a religious liberty argument. But any mention of religious liberty is, in this case, beside the point. Ocean Grove Camp Meeting Association has a valuable resource, and they divvied up the rights in such a way that they sold someone else the right to determine that access had to be non-discriminatory. In the end, it's actually just a rather boring and commonplace case about property rights and contracts. Without the irrelevant religious overtones, it'd be a real yawner. And in its substance, it is.