Weak and Strong Conceptions of Property: An Essay in Memory of Jim Harris

Weak and Strong Conceptions of Property: An Essay in Memory of Jim Harris

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By no stretch of the imagination would I count myself as a close friend of Jim Harris. Until May of 2003, I only knew of his work from afar. But when! came to Oxford to deliver the Hart Lecture, he graciously invited me and my wife to Keble College for lunch, where on one occasion I got the full flavour of the man. Undeterred by his blindness, he was at once courteous, lively, and insistent. He cared deeply about the field to which he made such a major contribution, and seemed primed to take on new intellectual challenges in the years to come, before his life was so tragically cut short. On this occasion, I hope to honour the memory of this splendid gentleman by critiquing his general views of property. In so doing, I shall concentrate first and foremost on his comprehensive contribution to the theory of property law, his magisterial Property and Justice, which energetically puts forth his general theory in great detail. I shall add to that discussion analysis of particular portions of his work in his various articles, including his Maccabaean Lecture for 2001, 'Reason or Mumbo Jumbo: The Common Law's Approach to Property', in which he takes me to task for the strong positions of property rights that I took-and continue to hold-in my 1985 book Takings. There is much at stake in this debate, for the vision that one takes of property is important not only in the way in which individuals organize their relationships with each other, but also in the way in which individuals organize their relationship to the state. The dispute that I am about to address, moreover, is not one that originates with Harris or myself, but has a distinct lineage that can be traced back to the earliest times. Indeed, this dispute covers two debates going on side by side, the one with rights to property, as some resource tangible or intangible, external to the self, and the liberty interest that people have in the way in which they lead and conduct their own lives. For these purposes, I shall think of the two positions as the weak and strong positions respectively. The weak position on liberty treats it as covering the right to bodily integrity and freedom of motion, but refuses to give automatic protection to claims for the use and disposition of labour. The weak position on property follows similar lines, and accepts and defends the rights of exclusion and possession, but does not accord similar heft to the rights of use and disposition. The strong position places the rights of use and disposition on a par with those of exclusion, both for liberty and property. Jim Harris was a distinguished defender, perhaps the most distinguished defender, of the weak side of the debate. With a sensible pragmatic streak, he disdained grand theories that treated liberty and property as the central conceptions of the modern state. I have long fallen prey to that temptation and have unhesitatingly backed the strong position, which I will once again do here. In order to do so, however, I shall point to matters on which Harris and I are in strong agreement, as well as those on which we differ. Part (i) of this Chapter begins by setting out a short summary of the Harris position. Because of its necessary brevity, this part ignores much of the subtlety and erudition that he brought to its defence. In dealing with these issues, Harris, in the tradition of British academic lawyers, was suspicious of the generalizations that count as the stock in trade of political theorists. In consequence, he tended to avoid claims of two sorts. First, he rejected arguments that property rights were in some logical way necessary to and inherent in the human condition. Rather, they were to be understood as part of the social context in which they arrived. The second is the intellectual converse of the first: he distrusted universalist demonstrations that purport, usually erroneously, to show the internal contradictions of the traditional common law synthesis of property law, which synthesis he judged to be just about the right approach. It is a pleasure to respond to someone who thinks that you are wrong on the merits, as opposed to those who regard your position as so incoherent that it does not deserve mention in the first place. Part (ii) of this chapter contains the exposition of the alternative view of liberty and property and their relationship to other key elements within the law. I hope to show that the weak account leaves too much running room for government discretion, which in turn results in the adoption of legal rules that have strong negative consequences for overall social welfare. In addressing this issue, it is worth noting that Harris showed a lively interest in economic theory, and had a good eye for some of its excessive pretensions to govern the world. But at the same time, his engagement with economics was largely defensive. He did not use it to explain, for example, the relationship between private and common property rights, even though he did talk in places about that connection? And, as an Englishman, even with broad comparative interests, he spent relatively little time in dealing with the constitutional aspects of the subject in light of the American experience,6 with which I have been intimately engaged for a long time. Yet the combination of those two fields makes a stronger case for the more strong view of property protection, even though the current state of American law cuts much in Harris's defence of the weak view. Part (iii) of this chapter carries the common law analysis forward into the constitutional domain. In it, I argue that much of the weakness of American constitutional law relies on its systematic adherence to the weak conception of property and liberty.

Source Publication

Properties of Law: Essays in Honour of Jim Harris

Source Editors/Authors

Timothy Endicott, Joshua Getzler, Edwin Peel

Publication Date

2006

Weak and Strong Conceptions of Property: An Essay in Memory of Jim Harris

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