Jeremy Bentham famously regarded natural rights as “nonsense on stilts” and taught that property rights are created by law and enforced by courts. Bentham’s view was that “before the laws, there was no property: take away the laws, all property ceases.” Lawyers in the Benthamite tradition accordingly set out to define the state-created nature of property rights and the boundaries of these rights as defined by the courts.
The elusive nature of property has long confounded common lawyers who conceptualize ownership not as dominium in the Roman law sense but instead as a bundle of property rights created by the state. For example, Kevin Gray observes in the Cambridge Law Journal that “property is not a ‘thing’ . . . it is the ‘bundle of rights’ that comprises the ‘property.’” He proceeds to ask: “But what are the rights in the property bundle? Or, more accurately, wherein lies the ‘property’ character of the rights in the bundle? What constitutes the ‘propertiness’ of ‘property?’” Common lawyers would answer that question by identifying the elements recognized by courts as components of that bundle of rights.
In Boundaries of Order, Butler Shaffer argues against the Benthamite notion that property rights are created by the law. Shaffer argues that property rights play a foundational role in social order and social interaction, a view that is entirely compatible with the classic common-law analysis of property. However, Shaffer differs from the Benthamites in rejecting the role of the state in creating and defining property rights. Instead, Shaffer sees property rights as an expression of what he calls “the will to own.” The will to own is an expression of the human will and is essential to human liberty. On that basis, Shaffer defines ownership as follows: “A claim of ownership is the assertion of one’s will, addressed to others, to be the exclusive decision-maker over oneself of some resource; to have what one claims be immune from trespasses by other persons.”
Ownership as a Social Concept
Shaffer sees ownership as a “social concept” in the sense that when we assert a claim to ownership, “it is to others that our claims are directed.” This aspect of ownership as a social concept accords with the interpretation of property rights in the case-law-dominated English common-law tradition, as the content of property law is largely constructed by courts to resolve disputes between, for example, the owner and a trespasser rather than to advance any philosophical or ideological theory of property. Property litigation was not historically about theoretical ideas on the nature and origin of property rights but primarily about how to settle very practical issues in contest between two parties.
In that context, the notion of excludability is key to Gray’s analysis of the common law of property. In his example, “the lighthouse keeper may control access to the benefit of the light by the simple action or inaction of never switching on the light . . . somebody may have ‘property’ in the lighthouse, but nobody can have ‘property’ in light.” Excludability is not only a question of whether it is physically possible to exclude others from the resource but also, as Gray observes, includes a moral element. In his example, not only is it physically impossible for the lighthouse owner to exclude others from seeing the light he emits, but it would also violate basic moral principles. In appropriating light, air, or water, “following such appropriation, there would not, in Locke’s well-known phrase, be ‘enough, and as good left in common for others.’”
Gray’s analysis, however, errs in its subtle shift from property as a set of social relations to property as a construct of state authority and power. Gray depicts property rights as “mere” moral or social rights that can be “abridged or overridden by other moral concerns” or by “more highly rated social objectives” including “political standards which enrich life.” Gray sees property as a relationship between three people: the property owner, the trespasser, and “the state, expressing its collective judgment through the voice of the courts.”
The Importance of Self-Ownership
By contrast, Shaffer emphasizes that property rights reflect not state edicts but the will to own. On this point, Shaffer’s analysis has great explanatory power, as he rejects the idea that the state is a third participant in the social relations through which ownership claims are expressed. Shaffer argues, on the contrary, that “law and rights do not depend on the dictates of the state.”
Shaffer conceptualizes property rights as ownership claims addressed to others in the course of social and market interaction and exchange, arguing that property rights are decided through the process of human interaction rather than being decided by the state. He identifies several difficulties that would arise if the state had the prerogative to dictate claims to ownership.
For example, if the state is to decide what is or is not property, what is to stop the state from declaring—should that be the democratic will—that human beings are chattels? Only the concept of self-ownership stands between each individual and any attempt by the state to enslave him. As Shaffer explains:
While almost all thoughtful men and women now condemn these earlier practices, there has been little awakening to the importance of asserting the case for self-ownership. To the extent that we deny our own self-ownership, we have not ended slavery, but only redefined it. By subjecting our lives to the control and management of institutional authorities—particularly the state—we have done little more than transfer our allegiances to new masters.
Shaffer defines self-ownership as “the assertion of one’s will to have exclusive power and control over one’s life.” Shaffer is not referring here to the natural rights that Bentham described as “nonsense on stilts” but rather to very practical concerns, namely “the need of all living things to occupy space and ingest energy from their external world” by defining their boundaries and refraining from encroaching on the space of others—a basic aspect of all social interaction. Shaffer argues that “because we are social beings who can sustain ourselves only by the individual consumption of resources, the property principle is at the core of our well-being.”
Understood in that way, and in particular by seeing property rights as a construct of self-ownership, it becomes clear that property rights do not depend on laws or any other state edicts. The state, on the contrary, intervenes in such social interactions to regulate or control ownership claims ostensibly to promote order, security, or other public goals. This leaves citizens at the mercy of whatever the state decrees to be or not to be property rights. In that light, the state should not be seen as the source of property rights but as a threat to them.
