The Morality of James Harris’s Theory of Property
THE PROPERTIES OF LAW: ESSAYS IN HONOUR OF JAMES HARRIS, pp. 138-165, T. Endicott, J. Getzler, E. Peel, eds., Oxford, OUP, 2006
14 Pages Posted: 10 Feb 2011 Last revised: 7 Mar 2011
Date Written: 2006
Jim Harris sidestepped the issue of the formal relationship between property and morality neatly, by avoiding an inquiry into the nature of "true property". Harris wished to free himself the trappings of all too familiar jurisprudential debates, focusing rather on what one might call the substance of property: its contours and its justifications. Indeed, in terms of the structure of the book, Harris appears to give both the legal and the moral their respective due: the formal division of his book Property and Justice is in two parts, one describing property in its social and legal practice and the other setting out its justifications. In terms of what has famously been called descriptive sociology, any property institution was comprised of trespassory rules protecting rights along a spectrum of ownership, and none of the various 'property' outcomes were necessarily determined by some concept of 'true property'. With respect to moral discourse, any specific property institution in any society had to in some way pass muster in a justificatory discourse focused on property itself: property-specific justice reasons. This formal separation of
Parts I and II is an aptly symbolic embodiment of the positivist reconciliation: contingent connections but no necessary one; a rich property institution, but no true one. And yet, by the end of the argument, property, and indeed private property, is infused with a great deal of moral weight: while not "true", it is laced with a great deal of justice.
My purpose here is to assess Harris’s contribution by bringing to light some of his own moral assumptions, and by viewing his theory in light of some more explicitly moral theories of property. These latter theories tend to be North American in origin (perhaps a reaction to the excesses of rights talk in these parts), and not always framed in the analytic terms of Oxford legal discourse. The purpose of this paper is to survey this terrain and look for commonalities and differences, and to identify and elaborate some of the implications of the divergent positions.
The conclusion that I shall reach is that Harris’s overall theory of property does indeed exhibit an internal morality, one which is grounded in the fostering of individual autonomy and development and that can form the legitimate basis of a human right to property. The more weight one gives property in its role in human development, the closer one gets to positing it as a human right and calling it a component of justice. Thus Harris’s view of property does contain what are in effect moral rules or assumptions, and the line between necessary and contingent becomes obscured by talk of property as a human right. This "thin view" of justice differs from other defensible moral theories of property that have a wider grounding, particularly in non-individualistic goals. The differences between the two approaches will be most manifest in what one might the call the clash between "concept" and "context" in both the understanding and justification for private property, a fundamental tension that runs throughout property scholarship. ' None of this means that there necessarily exists a form of "true property" which can be deduced through reason and that becomes the standard to adjudicate other manifestations of the property phenomenon.
Keywords: James W. Harris, private property, positivism, morality, ethics, law
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