Property, Honesty, and Normative Resilience
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What is the relation between property and honesty? Fairly straightforward, one would think. In times past, “honesty” was used often as a general term for virtue or honor, encompassing chastity, generosity, and decorum. But according to the Oxford English Dictionary, its prevailing modern meaning is “[u]prightnes of disposition and conduct; integrity, truthfulness, straightforwardness: the quality opposed to lying, cheating, or stealing.” So, if stealing is one of the things to which the quality denoted by “honesty” is characteristically opposed, then to that extent “property” and “honesty” are correlative terms. To steal is to take somebody’s property—that is, an object that, under the rules of property, he has the right to possess—with the intention of permanently depriving him of it (what lawyers call the animus furandi). To be disposed not to steal means that one is disposed not to violate the rules of property in this way. To be honest – in this sense of honesty—is to respect the rules of property. But respect which rules of property? The existing rules in society, currently in force—however unjust or oppressive? Or the rules of property in so far as they are regarded as fair? “Honesty” also has the meaning of “fairness and straightforwardness of conduct.” Does it pull us in two directions here? Is the man who violates an unjust property right with the intention of permanently depriving an undeserving “proprietor” of some goods he “owns” dishonest? Is this even a marginal case for the concept of dishonesty? Or do “honest” and “dishonest” go unequivocally with the positive law of property (leaving it perhaps a further question whether dishonesty is always a vice or always wrong, all things considered)? If it is a marginal case, then what tends to make the difference at the margin? Is the taking less dishonest depending on its manner, depending on the motive, depending on the extent of the injustice, or depending on whether there is an appeal to some alternative set of existing property rights (say, from the past)? Some might say, for example, that there is necessarily something furtive or deceitful about dishonesty, so that an open taking of something when property rules are contested is to that extent less dishonest. Or they may say that even if the existing allocation of property is unfair, it matters whether or not the take is motivated by personal greed: although he took from the rich, Robin Hood was not dishonest inasmuch as he gave what he took to the poor. Or, if one “steals” for personal use, it may make a difference whether it is personal use to satisfy a mere want or person use to satisfy desperate need, particularly if a case can be made that the society’s neglect of such need is itself the ground of injustice. Finally, it may make a difference whether the taker is attaching existing property rights purely on the basis of his own utopian theory of justice, or whether he is attacking them in the name of some alternative set of property rights that was established and existed in the society in the recent past. In his famous study Whigs and Hunters, E. P. Thompson notes that a lot of what was condemned in eighteenth-century England as poaching, stealing, and trespass was regarded they the perpetrators as the vindication of traditional property: “What was often at issue was not property, supported by law, against no-property; it was alternative definitions of property-rights: for the landowner, enclosure—for the cottager, common rights; for the forest officialdom, ‘preserved grounds’ for the deer; for the foresters the right to take turf.” In this context, the defenders of traditional rights would not regard themselves as thieves nor their takings as dishonest, however much their opponents tried to stigmatize them in those terms.
Source Publication
New Essays in the Legal and Political Theory of Property
Source Editors/Authors
Stephen R. Munzer
Publication Date
2001
Recommended Citation
Waldron, Jeremy, "Property, Honesty, and Normative Resilience" (2001). Faculty Chapters. 1625.
https://gretchen.law.nyu.edu/fac-chapt/1625
