The Moral Subject of Property

Abstract

What kind of person is presupposed by property law? This paper, written for a symposium on the morality of law, investigates the morality that is expected of participants in property regimes, and it argues that property presupposes a "second-best" morality. The presumptive property subject is a self-interested being, but also one who has a modicum of cooperativeness. But is such a second-best morality good enough to command respect? Critics complain that it is not, and that property concedes too much to human self-interest. This paper explores three areas where this critique arises: the claims that initial acquisitions are based on wrongful behavior, thus tainting subsequent ownership; that property results in unequal distributions of wealth; and that commercial property's alienability corrupts the human understanding of love, generosity and good civic behavior. The usual property-based answer to these critiques is that property nevertheless makes us all better off. Thus claims and responses do not meet, with one side speaking of personal morality and the other referring to the public welfare. Nevertheless there are several ways in which property's more forgiving second-best standard may also call into question the personal moral character of a more demanding first-best standard.

Keywords: property, morality, acquisition, inequality, commodification

JEL Classification: K11