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Published online by Cambridge University Press: 09 June 2015
It is often assumed that there is an important conflict, perhaps even a contradiction, between claims to private property in land, on the one hand, and claims of public access to it, on the other. The conflict is manifest in the dispute, common to many industrialised countries, between those who have private property in land and those who claim access rights to that land for recreational purposes. The first aim of this essay is to clarify what is involved if this conflict is to be understood as taking place at the level of normative justification. Our focus is therefore narrow because we ignore other grounds which, though they need not necessarily ignore normative justification, do not regard it as central to an account of the genesis and existence of the conflict. So, for example, the conflict might be solely or mainly a product of self-interested pressure group politics or ideological dispute.
The authors would like to thank Alan Brudner for his helpful comments and Norman Geras for some last minute logistical help. Of course, they are not in any way responsible for the weaknesses of this paper.
1. We are not here concerned with justifications for and access rights to resources other than land. For evidence of the dispute between landowners and access-seekers in England, see the publications by, inter alia, the Countryside Commission, Country Landowners’ Association and Ramblers’ Association. The latter organises an annual day of civil disobedience and mass trespass under the title of “Forbidden Britain”.
2. Becker, L. comes close to saying this in “Too Much Property” (1992) 21 Phil. & Pub. Affairs 2 at 198.Google Scholar
3. Jeremy, Waldron, The Right to Private Property, (Oxford: Clarendon Press, 1988)Google Scholar [hereinafter W:RPP]. Another excellent recent work upon which we rely heavily, although it is less concerned with exegetical matters than Waldron, is Munzer, S. A Theory of Property, (Cambridge: Cambridge University Pres, 1990) [hereinafter M:TP]. Abbreviations occur in text and footnotes.CrossRefGoogle Scholar
4. Bentham, J. An Introduction to the Principles of Morals and Legislation,CrossRefGoogle Scholar Burns, J.H. & Hart, H.L.A. eds, (London: Methuen, 1970) at 211, n. i2 (ch. XVI, sect. 26), (emphasis in original).Google Scholar
5. Honoré, A.M., “Ownership” in Making Law Bind (Oxford: Clarendon Press, 1987) at 181–84.Google ScholarUltimately all property (even intangible) may involve material objects, e.g. models or drawings for patents and copyrights: M:TP, supra, note 3 at 73.
6. See generally Hohfeld, W.N., Fundamental Legal Concepts (New Haven: Yale University Press, 1919) at 35–64;Google Scholar Becker, L., Property Rights, (Boston: Routledge & Kegan Paul, 1977) at 11–15;Google Scholar Simmonds, N.E., Central Issues in Jurisprudence, (London: Sweet and Maxwell, 1986) at 129–32;Google ScholarHonoré, supra, note 5.
7. This example is indebted to Honoré supra, note 5; see also W:RPP, supra, note 3 at 27–28. See generally Grey, T., “The Disintegration of Property” inGoogle Scholar Pennock, J., & Chapman, J. eds, NOMOS XXII: Property (New York: New York University Press, 1980) at 69–85.Google Scholar
8. Honoré does not explicitly relate his “incidents” of ownership to private property, but this is arguably implicit from the language he uses: ownership is contrasted with “public administration”, and defined as “the greatest interest in a thing admitted by a mature legal system”, supra, note. 5 at 161. He also stresses that he is concerned with “the liberal concept of full ownership”, and his language is inconsistent with “more restricted notionfs] to which the same label may be attached in certain contexts.” Ibid.
9. Honoré, Ibid. at 65.
10. Ackerman, B. Private Property and the Constitution (New Haven: Yale University Press, 1977) at 99–100;Google Scholar
11. Honoré, supra, note 5 at 166–68, 181, 184; see also M:TP, supra, note 3 at 89–90.
12. Macpherson, C.B. The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962) at 263 and 264.Google Scholar
13. See Macpherson, ibid. ch. 6.
14. SeeSandel, M. Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), chs. 1 and 4; andGoogle Scholar Maclntyre, A. After Virtu (London: Duckworth, 1981) ch. 15, for extended accounts.Google Scholar
15. Macpherson, supra, note 12 at 263.
16. Benhabib, S. offers a persuasive argument distancing Hegel from possessive individualism in “Obligation, contract and exchange: on the significance of Hegel’s abstract right”, inGoogle Scholar Pelczynski, Z.A., ed., The State and Civil Society (Cambridge: Cambridge University Press, 1984).Google Scholar
17. Respectively, John, Locke Two Treatises on Government (Cambridge: Cambridge University Press, 1988), Laslett, P. ed., with an introduction and notes [hereinafter L:TT]; and GeorgeGoogle Scholar Hegel, W.F. The Philosophy of Right (Oxford: Clarendon Press, 1952), CrossRefGoogle Scholartranslated with notes by T.M Knox [hereinafter H:PR]. In notes and text we refer to these texts in the abbreviated form with customary section numbers rather than page numbers. (In Hegel, ibid, where R, A appear after section numbers, R refers to Hegel’s additional Remarks to original text, A refers to original translator’s summary of the section[s].)
18. An appropriation must leave “enough and as good…in common for others”: L:TT, ibid. IIS27; W:RPP, supra, note 3 at 209–18.
19. This section is indebted to Waldron’s analysis: W:RPP, ibid. ch. 6.
20. Geras, N. “‘The Fruits of Labour’—Private Property and Moral Equality” inGoogle Scholar Moran, M., Wright, M. eds, The Market and The State (London: Macmillan, 1991) at 59–77.CrossRefGoogle Scholar
21. Laslett, supra, note 17 at 101.
22. SeeDay, J. “Locke on Property” (1966) 16 Phil. Quarterly 207 at 216.Google Scholar
23. W:RPP, supra, note 3 at 178; cf. Becker, supra, note 6 at 33, 34, 35, 36–41 (Locke as rights in one’s body).
24. Locke, J. Essay Concerning Human Understanding, Nidditch, P., ed., with an introduction, (Oxford: Clarendon Press, 1975), Bk II Ch.XXVII s.26.Google Scholar
25. See generally Locke, ibid. s.9–26; W:RPP, supra, note 3 at 179, 181; see also M:TP, supra, note 3 at 41–42.
26. This is because the Treatises and the Essay may be works of a completely different nature: Laslett regards the former as a political work and the latter as philosophical, supra, note 17 at 79–86; Dunn, J. also treats the two works separately: see Locke (Oxford: Oxford University Press, 1984), chs. 2 and 3;Google Scholarsee also The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969) at 198–99.
27. Day, supra, note 22 at 212.
28. Geras, supra, note 20 at 63.
29. W:RPP, supra, note 3 at 173–74; Olivecrona, K. “Locke’s Theory of Appropriation” (1974)24 Phil. Quarterly 220 at 228.Google Scholar
30. Geras is of the view that the crucial aspect is not mixing one’s labour, with a virgin resource, but simply mixing something which one owns: supra, note 20 at 68.
31. Olivecrona, supra, note 29 at 224–26, 229. As will be apparent from the discussion to follow there is a parallel of sorts between Olivecrona on identification and Hegel on embodiment.
32. Olivecrona, supra, note 29 at 224–25.
33. Geras, supra, note 20 at 74.
34. Ibid. at 74–75.
35. See Becker, supra, note 6 at 47,48–56; M:TP, supra note 3 at ch. 10. A different interpretation of Locke (appropriator's rights as creator’s rights) is also considered by Tully, J. in A Discourse on Property: John Locke and his Adversaries (Cambridge: Cambridge University Press, 1980);CrossRefGoogle Scholarand rejected by Waldron: W:RPP, supra, note 3 at 198–200.
36. Geras, supra, note 20 at 75; Dunn, “Locke”, supra, note 26, at 39; c.f. W:RPP, ibid, at 206; Becker, supra, note 6 at 49. Munzer’s radical, combined “Labor and Desert” principle is (by his own admission) a long way from the traditional labour theory of property: M:TP, supra, note 3 at ch. 10; esp., at 266–85, 289–91.
37. See W:RPP, Ibid. at 204; Geras, supra, note 20 at 75.
38. Offered by H. Steiner to Waldron: see W.RPP, ibid. at 183,187–88; see also Steiner, book review (1992) 101 Ethics at 201–03.
39. W:RPP, supra, note 3 at 183, 187–88; Day, supra, note 22 at 209.
40. W:RPP, ibid. at 187; Geras, supra, note 20 at 70.
41. Geras, ibid. at 70.
42. W:RPP, supra, note 3 at 189; Geras, ibid, at 68.
43. Geras, ibid, at 69 (emphasis in original).
44. Ibid.
45. W:RPP, supra, note 3 at 188–89; Nozick, R. Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974) at 174–75.Google Scholar
46. Olivecrona, supra, note 29 at 231–34; W:RPP, ibid, at 193.
47. W:RPP, ibid, at 193; Becker, supra, note 6 at 42; c.f. ibid, at 34. Compare resources gathered and used in their natural state: W:RPP, at 193.
48. Geras, supra, note 20 at 72,73; Nozick, supra, note 45 at 174; Olivecrona, supra, note 29 at 227–28.
49. Nozick, supra, note 45 at 175; W:RPP, supra, note 3 at 190.
50. See M:TP, supra, note 3 at 260. On resolving conflicts between competing principles within pluralist theories of property, see M:TP, ch. 11 and Becker, supra, note 6 at 103–12.
51. See Becker, supra, note 6 at 52–54; Geras, supra, note 20 at 76.
52. Although see Geras, supra, note 20 at 75.
53. Anyone familiar with Waldron (supra note 3, ch. 10) will recognise our indebtedness to his treatment of Hegel. About control, Ryan, A. in Property and Political Theory (Oxford: Basil Blackwell, 1984) at 122, Google Scholarsays that “Hegel identified taking in order to control as staking the initial claim to ownership” (emphasis in original).
54. On being a wanton see Frankfurt, H.G. The Importance of What We Care About (Cambridge: Cambridge University Press, 1988) at 16–22.CrossRefGoogle ScholarAs Waldron rightly notes (W:RPP, supra, at 352), there are echoes of Hegel here.
55. Of course, this claim need not be read as a denial of anything Hegel says about the importance of embodiment: see H:PR, supra, note 17 at S47,48.
56. Ryan, A. in “Hegel on work, ownership and citizenship”,Google Scholar Pelczynski, Z.A. ed., (Cambridge: Cambridge University Press, 1984) at 185.Google ScholarSee also Ryan, supra, note 53 at 122.
57. Unless, that is, the Emperor Caligula is one’s role model. He, remember, asked for the moon: see the eponymous play by A. Camus.
58. This view is also held by Knowles, D. “Hegel on Property and Personality”, (1983)33 Phil. Quarterly 45 at 57; and expressed by Munzer thus: “stable possession and use are necessary to achieve some abiding ends”, M:TP, supra, note 3 at 79.Google Scholar
59. This is the view of Benson, P. “The Priority of Abstract Right and Constructivism in Hegel’s Legal Philosophy” in Hegel and Legal Theory, Cornell, D. Rosenfeld, M. & Carlson, D.G. eds, (London: Routledge, 1991)Google Scholarnote 24 at 201. He also suggests that Hegel’s argument for private property does not justify some private property for all but just the capacity or freedom to appropriate property. The power of this argument turns, initially, upon the interpretation of H:PR, supra, S49A. Benson’s interpretation is, however, informed by the claim that the abstract right lacks ethical substance: it therefore stands or falls with that claim. Some (perhaps too) tenuous support for the latter claim may be found in Ryan’s view that Hegel’s argument “is not exactly a moral defence of property”: supra, note 53 at 139. Alan Brudner has put to us a slightly different version of this objection. An Hegelian defence of private property which holds that property is something everyone needs in order to develop his or her freedom and individuality, and which purports to be rooted in the abstract right, is mistaken because it incorporates something into abstract right that should not be there, namely, considerations of the good: see H:PR, ibid, at S37 and 129. This assumes that freedom and individuality qualify as the good in the relevant sense—that is, in the sense which should be excluded from abstract right. But this is by no means clear in the light of H:PR, ibid. S37A, 129A; and translator’s note 4, at 320. Moreover, we are not uncomfortable with the claim that abstract right tracks some abstract conception of the good where that means “good for ‘all persons qua persons’” (translators note, ibid.) rather than “good for specific individuals”. We think it is the latter sense that is excluded from abstract right, not the former.
60. For useful discussion see Ryan, supra, note 56 at 186–87; and also supra, note 53 at 122–23.
61. M. Rosenfeld divides the Hegelian person into an alienable “ego contractans” and an inalienable will: “Hegel and the Dialectics of Contract“, in Hegel and Legal Theory, supra, note 59 at 245. See also: in the same volume, Stillman, P. “Property, Contract and Ethical Life in Hegel’s Philosophy of Right” at 210–12;Google ScholarBenhabib, supra, note 16 at 163.
62. Benhabib, supra, note 16 at 168.
63. Translated with an introduction and notes by Baillie, J.B. The Importance of What We Care About (London: George Allen and Unwin, rev’d second edition, 1949), at 228–40. Google Scholar For a helpful treatment of this issue see Bernstein, J.M., “From self-consciousness to community: act and recognition in the master-slave relationship”, inGoogle Scholar Pelczynski, Z.A. ed., The State and Civil Society (Cambridge: Cambridge University Press, 1984).Google Scholar
64. The phrase is Rosenfeld’s: supra, note 61, at 239. He says of contract that its “primary purpose…in Hegel’s system is to give determinate content to the [sic] reciprocal recognition rather than merely to facilitate the acquisition of coveted goods”.
65. For what looks like a Hegelian statement to this effect see H:PR, supra, note 17 at S40: “it is only as owners that…two persons really exist for each other”.
66. Elster, J. Ulysses and the Sirens (Cambridge: Cambridge University Press, 1979).Google Scholar
67. Some examples from English law are: Highways Act 1980, ss. 26 and 31; National Parks and Access to the Countryside Act 1949, s. 65. However, the majority of access rights in England and Wales are the product of custom and common law.
68. As Rosenfeld observes: “[b]ecause the same process that sustains contract eventually leads to its dissolution, contractual relations must be bounded by noncontractual ones“, supra, note 61 at 247.
69. Stillman, supra, note 61 at 219.
70. Stillman, ibid. at 221.
71. See, for English law examples, Highways Act 1980, s. 25; National Parks and Access to the Countryside Act 1949, Part V.
72. He says that, on reading the conjunction of property and inalienability in Hegel, one might well “conclude that lives and liberties simply are not property in any useful sense of the term”: supra, note 56 at 187. From Ryan’s viewpoint Locke is also guilty of this misuse: see L:TT, supra, note 17 at IIS123. Munzer seems to agree with Ryan on this: M:TP, supra, note 3 at 41–56.
