Ethics Discussion at PEA Soup: Shmuel Nili’s “The Idea of Public Property,” with a critical précis by Barbara H. Fried

Welcome to what we expect will be a very interesting and productive discussion of Shmuel Nili‘s “The Idea of Public Property.” The paper is published in the most recent issue of Ethics, and is available here. Barbara H. Fried has kindly agreed to contribute a critical précis, and it appears immediately below. Please join in the discussion!

Barbara H. Fried writes:

I thank Pea Soup for the opportunity to comment on Shmuel Nili’s rich and thought-provoking paper. The paper argues, in brief, that  a theory of what Nili terms ‘deep public property’ is both necessary and sufficient to secure three desiderata that he regards as essential in a just state: (i) legitimating the state’s power to limit private property rights through taxation, restrictions on use, etc.; (ii) explaining why an autocrat’s diverting tax revenues to his own private use constitutes theft;  and (iii) legitimating the public regulation of private discrimination. (Nili’s fourth desideratum—that the state allow some forms of private property—does not require a theory of ‘deep public property’. It requires only that such a theory not preclude private ownership.)  I want to suggest that ‘deep public ownership’ is neither necessary nor sufficient for these purposes. That role is performed by a theory of implied consent by the governed to abide by the duly enacted laws of the polity in which they voluntarily live.

As a preliminary matter, Nili may be right that the term “public property” has made scant appearance in modern political philosophy, but the set of ideas it signifies has played a large role. The Lockean notion of the commons, as appropriated and extended by nineteenth century left Lockeans and more recently left-libertarians, seems vanishingly close to what Nili means by ‘deep public ownership’. The role a robust conception of the ‘commons’ has played in justifying widespread public control of ostensibly private property also seems to me indistinguishable from the role Nili assigns to ‘deep public ownership’.

Be that as it may, there are two parts to his argument that a deep theory of public property is necessary and sufficient for these purposes: (a) If property is privately owned in the pre-political state, the explicit consent of each owner is required to transform it into public property. Since unanimity is impossible to achieve, a polity may assert collective ownership of property only if the property is already collectively owned before the creation of the state. (b) In contrast, unanimity is notrequired to convert formerly public property into privateproperty. The justification for his asymmetric treatment of private-to-public and public-to-private is not clear to me. After all, every member of the polity holds an undivided part ownership interest in the commons, and therefore (under Nili’s logic) has a right to withhold consent to its conversion to private property. But accepting arguendo the asymmetry, we are confronted with the following situation:  if property starts out private, it cannot be transformed into public property, but if it starts out public, it can remain public or be converted into private property with less than unanimous consent. (Nili does not say what form of consent is required for these purposes.) Framed that way, it is easy to see why he believes that a theory of deep public property is necessary and sufficient to give the state meaningful control over the resources within its border.

His argument, even if persuasive, proves way too much. If unanimous consent is required to establish collective control of formerly private property, surely it is required to assert collective control over any other significant aspect of a formerly autonomous individual’s life, starting with subjection of the individual to the jurisdiction of the state. That is a logically coherent—if morally unappealing—conclusion, but it leads pretty directly to anarchism.

Assuming that is not where Nili wishes to end up, he has to accept that some form of blanket (generally tacit) assent of the governed suffices to legitimate the power of the state, and its lesser-included right to choose the rules that will govern the polity. With a tacit assent standard in place, the government’s decision to convert public property to private or vice versa is legitimated simply by showing the decision is made in accordance with established governance rules. If one accepts the divine right of Kings, all that is  required is the King’s approval. If one accepts (or insists on) a majoritarian, representative democracy, what is required is the explicit consent of the (super)majority of elected representatives, acting within any Constitutional constraints.

The US Constitution struck an initial compromise between public and private control of property (ratified by majority vote of the ‘people’) in the “police powers” and “eminent domain” clauses, favoring public prerogatives, and the due process and just compensation clauses of the Fifth Amendment not to have one’s property taken without due process of law, favoring individual prerogatives. Within those broad constitutional constraints, myriad legislative compromises have been struck granting broad public regulatory powers:  nonconfiscatory taxation, the right to adverse possession, health and safety requirements, the law of private nuisance, zoning laws, time-limited copyright and patent protections with compulsory licensing. Indeed, the public regulation of ‘private’ property is so extensive in the US that, from a functional perspective, all ‘private’ property is more properly thought of as quasi-public property. The legitimacy of these compromises does not depend on the identity of the original owners of the property (England in the person of the King, colonists under a grant from the Crown or pursuant to their own local governance structure, Native Americans, etc.) or whether the property was held collectively or individually prior to the founding. It depends upon the legitimacy of the Constitution and of majoritarian democratic rule pursuant to it.

The same argument holds for Nili’s other desiderata, I would argue. Showing the wrongness of a ruler’s diverting the public fisc to his private use does not depend upon showing that the property he took was ‘public’. It depends on showing that he lacked the authority to appropriate it for his own use. In an autocracy, when the ruler treats the fisc as his own ATM, he is not stealing from the people. He is exercising his legal prerogative. (He may have stolen that prerogative from the people, but that is a different argument, grounded in a theory of deep democracy, not deep public property.) In a government in which the rulers are merely agents of the people, a politician who diverts privately or publicly owned property to his private use is stealing from the people. That conclusion also does not depend on whether the people own it individually or collectively. In either case, it is theirs, not his.  It follows that if the appropriation is countenanced by the people, it is not theft, however morally objectionable it may be on other grounds. That is the burden Nili’s George Washington and Colombia examples.

And, I would argue, the same argument holds for Nili’s third desideratum: establishing the constitutional wrong of private discrimination. Nili’s argument that there is no such thing as purely ‘private’ discrimination because all private property is ultimately public was advanced by civil rights lawyers in the first half of the 20thcentury, in a bid to get the courts to strike down racially restrictive covenants, whites-only primaries, and other racially discriminatory measures adopted by ‘private groups.’ (The constitutional challenge failed, but was ultimately mooted by passage of the 1964 Civil Rights Act, which asserted public control over private discrimination by legislative fiat.) That all private rights are public ones because they depend upon the state for articulation and enforcement is one of those arguments that cannot be refuted by fact or logic; it will either strike the reader as persuasive, or not. But its persuasiveness does not derive from a theory of deep public property. It derives from a deeper and broader theory about the relationship of the individual to society.

One might object that Nili and I are talking about different things—he, morality, I, legality. But the legitimacy of any government rests on a normative claim, not a legal one, and that claim is normatively prior to the legitimacy of any particular governmental act. If one accepts both the moral imperative of collective self-governance and the need to settle for less than unanimous consent in exercising it, the legislature’s right to regulate private property is established by showing it acted in accordance with the accepted procedural rules of democratic governance, to which all citizens have implicitly consented. Nothing more or less is required. In short, I would argue, what the government requires to establish collective authority with respect to any individual prerogatives is a theory of deep democracy, not a theory of deep public property.

Author: Daniel Star

Associate Professor of Philosophy at Boston University

9 Replies to “Ethics Discussion at PEA Soup: Shmuel Nili’s “The Idea of Public Property,” with a critical précis by Barbara H. Fried

  1. I am very grateful to PEA Soup for organizing a discussion of “The Idea of Public Property,” and to Barbara Fried for her spirited response to the paper. I see Fried’s critiques as largely falling under two main headings. The first concerns the relationship between my deep public ownership model and several Lockean ideas. The second has to do with the model’s relationship to democracy. In what follows I respond to each line of critique in turn.

    Fried points to what she sees as several key affinities between my positions and those of left-Lockeans, affinities which are supposed to produce difficulties for my argument. Fried starts out by suggesting that the Lockean notion of the commons “seems vanishingly close” to what I have in mind by deep public ownership. I certainly concede that I should have said more in the paper to pre-empt this reading of the deep public ownership model. But I do want to stress that I did not intend the model to be construed in this way. According to the model, collectively sovereign members of the body politic, taken together, enjoy collective claims over the body politic’s property. This is fundamentally different from the Lockean appeal to individual, pre-political property claims made by human beings qua human over the earth’s resources. The property claims in which I am interested are distinctly political; they arise in virtue of shared citizenship rather than shared humanity; and can only be collectively rather than individually exercised.

    The significance of these distinctions comes to the fore when Fried imputes to me a distinctly Lockean assumption – namely, that “every member of the polity holds an undivided part ownership interest in the commons, and therefore…has a right to withhold consent to its conversion to private property.” I agree with Fried that if it turned out that the deep public ownership model relies on this assumption, then it would become vulnerable in the ways she lays out. But the model does not in fact rest on this Lockean assumption. On the contrary. The model rests on a rejection of this assumption. I do not think any “undivided part ownership interest” in the commons exists. On my view, what each individual enjoys is not any “undivided part ownership.” Rather, as a citizen of his/her polity, each citizen enjoys the moral right to participate as an equal in collective decisions regarding public property.

    Similar thoughts apply to Fried’s adjacent worries regarding unanimity, which are really the other side of the same coin. Fried worries that my argument “proves too much,” given the repercussions that follow “if unanimous consent is required to establish collective control of formerly public property…” Now, I agree with Fried that such a position does indeed have implausible anarchist implications. But the conditional nature of her formulation is crucial, because I do not endorse the antecedent it features. The paper does not argue that all of us must grapple with problems that unanimity requirements pose for thinking about public property. Rather, the paper argues that those who endorse the idea of pre-political private property must grapple with difficult questions associated with unanimity requirements. So the point here is internal to the position I am criticizing. But if we avoid the basic premises of this position – if we follow (among others) Fried’s own illuminating critique of left-libertarianism, for example, and simply jettison the idea of pre-political property altogether – then puzzles about unanimity become moot (as does the alleged “asymmetry” that Fried notes). Collective action is the name of the game; the libertarian idea that we can somehow live outside of society – the idea that makes individual action an ever-salient alternative to collective action – is simply taken out of the picture. Once that is the case, unanimity doesn’t get a serious hearing ab initio. And so the “proving too much” worry loses much of its force.

    In turn, once it is made clear that unanimity is a problem for my opponents rather than for my own account, there is no longer any need to resort to any form of implied consent, to which Fried appeals. As a general matter, I do not believe that appeals to implied consent can play a significant (or possibly even any) role in grounding government’s moral claim to authority. That task can only be performed, I think, by some account of democratic equality, of the sort that’s been proliferating recently in the political authority literature.

    This brings me to the second main theme of Fried’s comments, concerning the relationship between the deep public ownership model and democracy. Fried elegantly writes that a theory of “deep democracy” rather than “deep public property” is needed in order to ground government’s collective authority regarding any individual prerogatives. On this score, we are much more in agreement. I thoroughly concede that the paper’s analysis of public property involves various democratic intuitions. Nonetheless, I do think that taking the property route contributes to our reflections on democracy.

    One way to understand this contribution is in terms of reflective equilibrium – or, to use the more concrete part of Rawls’ prose, the “mutual support of many considerations.” I think that it is helpful to see how our judgments regarding public property and our judgments regarding democracy can be mutually reinforcing, with each set of judgments buttressing our confidence in the other.

    A closely related point has to do with democracy’s contested nature. Democracy’s value, grounding, and practical implications have all been the subject of intense, and enduring, philosophical disagreement. So the links I draw between public property and democratic commitments may help strengthen our confidence in these commitments, by showing just how naturally they follow from judgments regarding public property that seem relatively uncontroversial – for instance, that an autocrat who designates a certain portion of public property as his personal property is stealing from the people (I admit I am not sure how to read Fried on this issue: some remarks in her commentary suggest she shares this judgement but proposes a different grounding for it, whereas others suggest she simply rejects it).

    My final point on the democracy front has to do with the worry that “deep democracy,” as Fried calls it, is indeterminate on at least some of the property questions I highlight. Take, for instance, the case of racial discrimination in the private housing market. Fried may be right to say that deep democracy too can support restrictions on racist participants in this market. But the imposition of such restrictions is still compatible with the thought that those deprived of “the right to discriminate” with regard to their property thereby acquire a moral claim to compensation (and possibly to other kinds of remedies), much as private property owners are entitled to compensation when governments exercise eminent domain powers and take their property away. Some of us, at least, will find such compensation counter-intuitive. I do not think the Trump Management Compensation, for instance, had even a presumptive moral claim to compensation when its choices of tenants were limited by anti-discrimination laws. But a simple appeal to democracy seems too thin a basis on which the ground the claim that such compensation would have been inappropriate. A coherent model of public property – like the deep public ownership model – seems like a better way to go.

  2. Thanks to Shmulik for an excellent paper. One thing I am trying to figure out is whether the deep public ownership account necessarily entails, as Shmulik seems to suggest, that private individuals can only exercise their property rights as “trustees” of goods owned by the public. It seems to me that, if we assume that rights to external property are alienable, then a people can collectively decide to alienate its property rights and transfer them to private individuals, not as trustees but as rightful owners. If that’s correct, then the deep public ownership account may end up encountering the same problems as the private aggregation model.

    But let’s assume that individuals can only exercise their property rights as trustees of goods owned by the public. I am wondering how this assumption fits with Shmulik’s further claim in the paper that “it would be wrong of the law to sanction individuals who make racist choices about whom to invite to a dinner party at their home.” A trustee, I take it, is someone who has a fiduciary obligation to administer the entrusted property solely for the purposes specified by the owner of the property. If the owner — the democratic public — collectively decides that the purposes for which private property can be legitimately used exclude racist dinner parties, then, it is not wrong for the law to sanction individuals who make racist choices about whom to invite to a dinner party at their home. Shmulik’s answer — if I understand it correctly — is that the trustee’s right to enjoy intimate relationships at their home constrains her fiduciary obligation to use the entrusted property solely for the purposes specified by the owner. This constraint is not internal to the definition of property and thus to the norms of trusteeship, but rather external to it.

    The reason why I am unpersuaded by this answer is that, generally, we assume that a trustee, by voluntarily accepting a trust, also agrees to waive those rights the exercise of which is incompatible with the purposes specified by the owner of the trust. Suppose that Tom, while on sabbatical, entrusts his home to Sara on the condition that Sara won’t organize any dinner parties at his house. It seems to me that, in the moment in which Sara voluntarily accepts Tom’s offer she waives her right to invite people over for dinner at Tom’s place. Of course, in exceptional circumstances, Sara may be all-things-considered justified to violate her fiduciary duties, but even in that case Sara would owe an apology to Tom, and the law may still permissibly impose on her some compensatory duties for her breach of trust. So why isn’t the same true of citizens who hold private property merely as trustees? Is the difference that citizens’ acceptance of the trust is not voluntary because, unlike Sara, they have no reasonable alternatives? Or is the difference that the sovereign people, unlike Tom, cannot reasonably expect citizens to waive certain rights (e.g. privacy or associational freedom) as a condition to hold property in the first place? If the latter, then, whether the deep public ownership account is more compatible with the demands of social equality than alternative accounts seems to depend entirely on how the scope of these independent values/rights is defined, and how much weight is assigned to them.

  3. Hi Chiara,

    Many thanks for these terrific questions. You’ve certainly given me much to think about. Here are some tentative reactions – tentative partly in the sense that you may very well show me the error of my ways on at least some of these.

    Re alienation of public property by the sovereign people: yes, in some contexts, I certainly think that the sovereign people can alienate their property rights. But such alienation can’t happen (I suspect) so long as the people retain jurisdictional powers over the relevant property. Consider a hypothetical democratic variant of the Louisiana Purchase: the sovereign French people, through duly elected representatives, decide to transfer ownership of land to the American people (for the sake of simplicity, let’s assume that historical injustice considerations don’t vitiate the French claim to own the relevant land). The transfer can’t really happen unless the French also give up jurisdictional powers over the relevant land. If the French still claim such powers, then the American people might be renting the land, but they don’t really own it (parenthetically, I don’t think this conclusion recreates the problems of the private aggregation model, partly because the conclusion doesn’t involve any suggestion that the status of public property can change through the uncoordinated choices of individuals acting in a private capacity).

    A more mundane example can be used to illustrate less dramatic instances of alienated (former) public property: suppose a national oil company sells oil abroad, with the proceeds duly going to the national treasury. Every oil barrel legitimately purchased by a foreign buyer becomes this buyer’s rightful property – the sovereign people that ultimately owned the oil has alienated property rights over the object. This alienation does not cause theoretical difficulties, since the relevant people do not claim any jurisdictional powers over that foreign buyer’s operations abroad (in contrast, the physical infrastructure that this foreign buyer might run within the sovereign people’s jurisdiction is ultimately owned by the people, and is merely entrusted to the foreign buyer).

    To be sure, there are all sorts of complex, grey-area cases that one could consider here, and it is likely that at least some of these cases will require complex international regulation/agreements. At the moment, I don’t have a settled view on the extent to which the deep public ownership model can help in shaping such international regulatory regimes. Obviously, here a good deal of global justice theorizing will be useful.

    Re trusteeship and its limitations: I definitely see the appeal of many of the points you raise here, and I am going to reflect on them for quite a while (not least because I would like to offer a more sustained account of “trusteeship,” going beyond my scant remarks in the paper). With that in mind, here are some initial reactions:
    – I do think that the voluntariness issue you note distinguishes micro-level trusteeship, of the sort you mention, from the particular trusteeship I discuss. Relatedly, I also think that government has a moral duty to provide its citizens with a property regime on which they can rely as they plan and pursue their projects. But there is no parallel duty incumbent upon individuals who are offering other individuals an opportunity to serve as trustees of “their” property, in exchange for certain benefits. This difference seems relevant in assessing what obligations/responsibilities can be imposed on the trustees in each case.
    – As a side-note, I also see the force of the other consideration you mention – that citizens cannot reasonably be expected to waive certain rights in exchange for prerogatives associated with property. But I am not sure that admitting this consideration into our thinking risks taking the sting out of the deep public ownership model. Instead, such admission may simply show once more that the full weight and implications of deep public ownership can only become clear against the background of other important moral values (again in crcuail contrast to the libertarian picture in which property alone essentially exhausts political philosophy).
    – Another reflection on the interesting micro-level trusteeship case you offer: if a “no parties” rule is a sensible condition to impose on would-be-dwellers in one’s home, that is, I think, because of considerations that are not really symmetrical to the collective case. Within certain (admittedly fuzzy) bounds, it is ok for a home owner to (try to) prevent situations where her tenants become a nuisance for third parties, because she is going to be on the hook as a result (socially, morally, and in some cases legally). I am not sure such considerations map neatly onto the collective case.
    – A final thought, on “wrongness”: it is coherent to say both that it would be wrong (even all-things-considered) for the body politic to interfere with certain individual (e.g. associational) choices bearing on property, and that the body politic would still be acting within its authority when interfering in this way. Put otherwise – the body politic might be acting legitimately in some such cases, even if unjustly. The paper neither endorses nor rejects this view, partly because I didn’t have the space to tackle a motley crew of resulting questions (not only concerning the legitimacy/justice distinction in general, but also regarding whether/how/when consequentialist calculations can join non-consequentialist factors to take inappropriate micro-level interventions beyond the realm of the ‘merely’ unjust, and into the illegitimate).
    – There are further complications that might arise once we bring in relevant distinctions between law and interpersonal morality, but having written a fair bit already, I’ll stop here. Thanks again for your thought-provoking questions!

  4. I’m happy to have the invitation to join this discussion. Shmulik knows that there’s much I disagree with in this paper – he’s heard most of this before – but I’ll try to formulate some of my concerns for those who haven’t heard them before. (I tried to post these comments yesterday, but that apparently didn’t work. My apologies there.)

    I think the paper is accurately titled as “The Idea of Public Property”. The paper is primarily interested in outlining how such an idea would work. I think we ultimately need another paper on the topic that perhaps is entitled “The Idea of Public Property Defended” to provide a firmer footing for its central claims. Many of the key claims in the paper take place primarily by stipulation rather than extended argument.

    On page 352, for example, Nili states that he is “simply going to assume that individuals have no prepolitical property rights over external objects. More specifically, I am going to assume that individual property rights in objects external to the body are a political creation: these rights are established by the body politic in order to advance independent social ends.” This would be a strange stipulation to offer in a paper intending to defend the idea of public property, since it sets property holdings as public by definition. In a paper explaining what the idea consists in, it’s probably fine, but it’s nonetheless not terribly satisfying.

    (Within the structure of the paper, Nili sets this stipulation before objecting to the idea that any sort of law can set the content of ownership in this way, including the law of an unelected dictator. He immediately suggests that the view of “any old law will do” is not sufficient: there have to be limitations to the kinds of law that are permissible. This seems a plausible argument. But nothing in the paper really argues for the merits of this stipulation. Rather, the presumption is that all property is intrinsically the creation of a public body, so that the relevant debate is about how much should be granted by the public to individuals, and how much retained for the collective. A few later pages – 360-364 – seek to show that this stipulation is coherent and lacks repugnant implications, without really defending it.)

    It would be more convincing for a paper of this kind to offer a clearer core defense of its most important claim. This is not the only location in which the paper declares important normative matters resolved by stipulation. On page 348, Nili states that “For my purposes, all of the individuals who permanently reside within each of the world’s stable territorial jurisdictions comprise— at least on first approximation— different sovereign peoples. Accordingly, each such jurisdiction contains only one people. The stable borders of Canada, for example, may encompass multiple ethnic, cultural, and linguistic groups. But under my definition, all citizens of Canada, no matter which such particular group they may belong to, together form one sovereign people— a single ‘public’ that collectively owns public property in Canada.” The question of the potential agents eligible to own collective property rights is thus likewise narrowed to one and only one in each territory across the globe. All property rights are the creatures of the state, and all states have clear boundaries that raise no interesting normative questions.

    The ultimate portrait of public property that emerges from Nili’s portrayal has the merits of being straightforward: all political communities own everything within their boundaries, and nothing (apparently) is left globally unowned. No agents beyond these erstwhile sovereign publics of existing states have much to say about who owns what.

    One does not have to be a hard-line libertarian, I think, to find this model of the relationship between persons and things misguided. However recurrent the temptation of anti-libertarians to hold that no one can be strongly connected to anything until a state says so, many kinds of human connections to parts of the world seem relatively free of controversy. One does not need to be an individualist libertarian to believe this. Consider a community that has lived in a particular territorial space for generations, and that has shaped its entire way of life around this location. (Given my own work on indigenous issues, I have indigenous communities in mind, but this is not essential to the case at hand.) The community has, in other words, strongly integrated the lives of its members into particular spaces and ways of relating to material objects. Presume that they are citizens of a state which has failed, up to this point in time, to make any clear legislative ruling about ownership in this territory. (This is true in relation to many indigenous groups in Canada.) Are the sovereign people of the state free to make any ruling that they wish in this context, whatever it might be?

    It seems obvious to me that they are not. Whatever one’s discomfort with the conditions necessary to qualify for pre-political rights of ownership, they seem pretty clearly met in this instance. If the sovereign people comes to tell them that, despite their connections, a democratic vote has decided to sever their connections to this territory, would they have any good reason to accept this assertion of deep public ownership?

    It seems to me that they should not accept it, and that they would be right not to do so. Calling oneself a state does not automatically grant one ownership, nor does holding a vote resolve moral questions about who is linked to what material objects in the world. Some people really are much more strongly connected to some things than other people are, and it is hard to see how this could be morally irrelevant for determining the shape of ownership. While there may be conditions in which need requires some of these ownership rights to be transferred to assist others, there are again substantive principles that should govern these requirements. A vote one way or the other seems entirely beside the point for these basic normative relationships. It may be, of course, that there is a great deal of ambiguity in the principles, and a great deal of difficulty in getting people to cooperate socially on any kind of shared project, so that voting is needed as a second-order way of managing normative uncertainty and disagreement. But it’s hard to see how a second-order concern of this type would undermine the basic normative linkage between particular communities and particular parts of the material world.

    As I understand it, Shmulik would reply to cases of this kind that the sovereign people must act only with the good of their members in mind, and that a rule that entirely separated a group from their current location of life would unjustifiably burden some citizens in unfair ways if it required their displacement to occur very quickly (see page 356). This kind of unjustifiable burdening seems clearly to occur in a case like this, but it seems that it’s much harder to recognize the force of this concern where we presume, without much defense, that no one can own anything until a state says they can. The sovereign people would have to be slow about their project of displacement, but if the outcome has occurred through the appropriate procedures, then there doesn’t seem to be much of an argument against it as an overall project. If there are no pre-political property rights, there are presumably no pre-political quasi-property rights, so all that seems to matter is the pace of displacement rather than the goal.

    The role of this time-limitation on the power of the sovereign people is, unfortunately, not entirely clear. The limitation on the kinds of state laws that are legitimate based on relationships between individuals and things looks a lot like a pre-political property right (or quasi-property right), but under public ownership this doesn’t seem as if it can be right – after all, the goal was to get rid of the burdens such rights might pose. To describe deep public ownership and then to limit it by pre-political caveats seems to pull most of the teeth from the paper’s argument. Deep public ownership would then become much less thick than it initially seems to be, and much less central to our thinking about how relations between persons and material things should be understood. We would still need to do the hard work of figuring out who has connections to what, how normatively deep they are, and so on.

    My own sense, of course, is that rights of ownership really should be understood as divided in complex ways. Property rights are intended to serve diverse moral functions, and some of those functions are best served via collective procedures, while some of them are likely to be violated by those procedures. It’s not obvious to me that there would be anything normatively dispositive about democratic outcomes in even an ideal democratic society, but we thankfully don’t have to answer that question, since this isn’t the kind of society we live in. Real democratic principles can lead to normative abuses, just as other kinds of procedures can. Why should we trust majority populations to behave wisely in this way, or imply that they are inherently incapable of such wrongdoing?

    Perhaps one could put the matter more pointedly: if the sovereign majority of Canada, acting through appropriate procedures, decides to displace the long-established community described above in the absence of any strong normative reason, does it have the right to do so? If it does have this right, the sovereign people is indeed the property-owning agent that holds all of the incidents of ownership. If it does not have this right, it does not morally hold all the incidents of ownership. Why should we think that the former is true, rather than the latter?

    My sense, then, is that the paper hasn’t really given an effective explanation of deep public ownership, even if it has usefully outlined some of its entailments. Shmulik may have answers already in mind, as hinted at in various notes in the paper (e.g. note 38) and on pgs. 360-361. I don’t think they will rescue the argument, but I don’t doubt that there’s a great deal more here to be said.

  5. Congratulations to Shmulik on this intriguing and well-argued proposal. For reasons I will explain shortly, I find the concept of public property illuminating, and I am grateful to Shmulik for putting it (back?) on the agenda. But first, though I don’t fully share her interpretation of the argument, I want to underscore Barbara’s concerns about whether the deep ownership model is a necessary tool for the tasks that Shmulik assigns it.

    In his contribution to the Routledge Companion to the Philosophy of Law (2012), Peter Vallentyne draws a helpful distinction between ways of marking the property/justice relationship. For libertarians, property is justice-determining, while for nonlibertarians, property is justice-determined. Justice for libertarians is meant to protect prepolitical property rights. Justice for nonlibertarians is meant to define property rights, which do not exist independently of political society. This isn’t really a novel claim. It just helps to crystalize the divergence of perspectives. But once we have this distinction firmly in view—once we fully grasp that for nonlibertarians distributive shares and property holdings are derivative of principles of justice—it’s not clear to me what the deep public ownership model adds. To assert that all property is fundamentally public seems to be either a redescription of the basic nonlibertarian premise or else a natural implication of it.

    With this in mind, I’m not sure whether the deep ownership model is necessary to solve the problems that Shmulik wants to solve. How, for instance, can we explain the wrongness in graft by state officials? Why can’t we simply say that officials have no entitlement to more than the wages that justice allows them? If they pilfer the public coffers illicitly, they also violate basic principles regarding procedural justice. But what does the work here are the principles of justice, not any additional claims about ownership relations. So, I’m not sure how much the deep ownership model contributes to our understanding.

    Still, I remain excited about the concept of public property, partly for the reasons that Shmulik alludes to in his introduction, which mentions public lands. As Shmulik writes, we encounter objects of public property all the time in our daily lives. What I want to know, and what I hope the concept of public property can help us understand, is which of these objects really cannot be privatized or outsourced, and precisely what this entails. I would like to think that the concept of public property can do more than weigh in on the longstanding and high-level debate over the nature of ownership; rather, I would like to think that it can help us understand, on a more practical level, which kinds of objects should be publicly maintained, funded, and/or regulated—and how so.

  6. Thanks to Ted and Burke for many interesting challenges (and apologies for being slow to respond today). I initially thought I’d offer a combined reaction to both of them, but in the interest of time, I’ll start with Ted’s briefer comments, and respond to Burke’s later.

    Ted wonders whether the deep public ownership model merely re-describes the non-libertarian premise that property is positive rather than pre-political; alternatively, Ted worries, the model turns out to be merely a natural (obvious?) implication of that premise.

    In a way, I share this thought. That is, I do believe that mainstream egalitarians– Rawls, Dworkin, and so many others, at least among deontological egalitarians – are committed to the deep public ownership thesis (in fact, I have argued this at length a few years ago, in a JPP precursor to “The Idea of Public Property”). But unlike Ted, I don’t think that many mainstream liberals are happy to hear this news, not least because it forces them to adopt positions that seem to more than a few to be overly radical, “spookily socialist” etc. Hence the need to “play defense” and show that deep public ownership can ultimately accommodate a slew of more moderate, familiar liberal intuitions (e.g. regarding the moral significance of personal property, regarding the moral value of privacy, and so on).

    Now, is it necessary to appeal to the model to reach every single one of the conclusions I support in the paper? Probably not, but I did not mean to argue for this bold claim. My ambitions were more modest. On some issues (e.g. grounding the graft allegation), even if not strictly necessary, I think the appeal to deep public ownership is helpful, not least because it captures more quickly and directly the distinctive wrong at stake. For instance, there are many possible violations of “pure procedural justice,” and it’s not obvious to me that they are all as clear-cut, and generate the same instinctive moral outrage, as the simple and direct charge that rulers/public officials are stealing the people’s property.

    Similarly, when governments take distance from key discriminatory practices (e.g. with regard to housing) by designating such practices as “merely private,” we can of course condemn their policies as unjust. But it does add something to make the relevant injustice much more specific, by pointing out that insofar as the relevant discrimination revolves around property, it is ultimately public rather than private in character, and so the buck ultimately stops with public authorities.

    In other cases, I think deep public ownership is helpful in leading to unorthodox policy proposals – e.g. the referendum proposal on how to deal with pervasive corruption, which I highlight at the end of the paper (and discuss in more detail in The People’s Duty). Admittedly, I can’t entirely rule out the possibility that such a proposal could also be defended on alternative grounds. But it is nonetheless a natural – and far-from-trivial – corollary of the deep public ownership model.

    Finally, to reiterate one of my points in response to Chiara, it does seem important to highlight contexts in which the sovereign people, in virtue of owning public property, have the moral authority to make certain decisions about this property that are both morally and rationally sub-optimal. This thought suggests that deep public ownership is not straightforwardly reducible to general standards of justice. It also suggests that the deep public ownership model highlights anti-paternalistic intuitions that are important to our thinking about popular sovereignty. Can we also support these intuitions by beginning with different premises/emphases? Possibly. But then again, as many philosophers have noted, with enough tweaking, one can get from almost any starting point to any desired endpoint. So arriving at attractive results in an especially direct manner is valuable as well.

    As to Ted’s concluding point – which public property cannot be alienated? Beyond my Louisiana-Purchase-style comments to Chiara, I am not sure. I suppose It’s hard to see how a sovereign people can sell off all the most basic physical infrastructure supporting its government while remaining meaningfully sovereign (though this is such an unlikely scenario that we may have a hard time making it real enough to trust the intuitions to which it points: it’s probably too suicidal, insofar as public support is concerned, for any leader to actually suggest selling off, say, the national parliament building, or the seat of the executive branch). But I would certainly want to think more about what public property cannot be alienated. So thanks for this Ted!

  7. With some delay – for which I apologize – I’m adding my thoughts on Burke’s trenchant critique of the paper. Burke and I have had the pleasure of vehemently disagreeing about these topics for a while (in fact, more than ten years now), so at this point our prospects of convincing each other are truly minuscule. Nonetheless, respect for both our friendship and the philosophical issues at stake compels me to try once again! 🙂

    Let me start with Burke’s assertion, especially in the earlier parts of his commentary, that the paper proceeds by asserting its core ideas rather than arguing for them. There are several things to say about this complaint. First, as Rawls famously points out, we have to start from somewhere. And I consciously chose to start the paper with some basic assumptions about the existence of public property, alongside a few premises regarding the desiderata that a compelling account of public property must be able to satisfy. I regarded – and obviously still regard – these stipulations as minimal and largely uncontroversial for any non-libertarian.

    Second, it is clear throughout his commentary that Burke thinks that by far the most significant and problematic assertion in the paper is its rejection of pre-political property. I agree that this rejection is extremely significant, of course. But, unsurprisingly, I disagree on whether it’s problematic. As is evident from the text, I firmly belong to the mainstream egalitarian camp for which the idea of pre-political property is (at best) an enormous distraction in contemporary political philosophy. Pre-political property has been refuted many times over, by numerous theorists – Rawls, Nagel (and Murphy), Scanlon, Waldron, Wenar, Fried, Ryan, (Allen) Buchanan, Christiano, Stilz, Ypi, Ripstein….and the list goes on and on. To be sure, there are also brilliant philosophers who vehemently endorse pre-political property. I confess that I struggle to understand this. But I also readily confess that I don’t think there is much point in simply rehearsing this particular dispute. At least in this point in the scholarly conversation, it is wiser to extend our horizons, and instead of asking whether we should reject pre-political property, examine some new perspectives on what happens if/once we do.

    Third, I find it striking that Burke does not actually discuss almost any of the substantive conclusions that the paper defends, or even the policy questions it takes up. Instead, Burke focuses virtually exclusively on the kinds of moral/political issues that the argument leaves unaddressed, or that – he thinks – are threatened by a rejection of pre-political property. But if that is one’s dialectical strategy, then of course one is going to arrive at the charge that the paper’s core ideas are not well-defended. Instead, in order to really undermine my starting point, I think Hendrix would need to do much more to show that my chosen questions are problematic, or that my answers to them are problematic, or that these answers don’t advance our thinking about these questions.

    With all this in the background, let me now raise some related but more specific concerns. One such concern has to do with Burke’s repeated emphasis on “the relationship between people and things.” Burke uses this formulation multiple times in a manner which suggests that he takes it to be a self-evident, neutral starting point. I beg to differ. It has long been a central complaint against libertarianism, that it misconstrues the nature of ownership by seeing it in the first instance as a matter of “how people relate to things.” Ownership, for anti-libertarians, is quintessentially a matter of how people relate to *other people,* not to things (part of the reason why anti-libertarians are so ready to dismiss the Lockean “labor-mixing” metaphor as confusing and confused).

    Another way to sharpen this complaint is to distinguish – strongly – between various sorts of particular attachment claims, of the kind Burke invokes time and again, and claims of ownership. Burke imputes to anti-libertarians “the temptation to hold that no one can be strongly connected to anything until a state says so.” For what it’s worth, I don’t know anyone, including any non-libertarian, who actually holds this. Certainly I don’t, and nothing in the paper commits me to endorsing this odd view. What I do endorse – and what most if not all non-libertarians endorse – is the thought that individuals don’t get to exercise *property rights* independently of political regulation. But I simply don’t see why this thought entails any denial of a “strong connection” – including a morally salient strong connection – between particular individuals/groups and particular parts of the external world.

    To my mind, a disproportionate share of the rhetorical work here is done by Burke’s invocation of indigenous communities, whose subjection to sustained and brutal injustices no morally sentient person will dispute. But I see no reason to think that a denial of pre-political property rights in any way undermines our ability to condemn the appalling treatment to which these communities have long been subjected. Surely, the wrongness of this treatment is vastly over-determined. Among other things, we can appeal to rights of occupancy, crucially distinct (as Stilz for example has shown) from rights of ownership, to ground the judgement that expulsion of tribal communities from lands central to their traditions and way of life constitutes a grave moral injury. And, pace Hendrix, the same moral injury can be defended in similar terms even if that displacement occurs more slowly – and certainly if it is the result of a deliberate governmental policy that clearly targets tribal communities, thus violating rudimentary Rousseauian notions about the generality of legitimate laws. All this is fully compatible with the deep public ownership model.

    Here is another way to illustrate my concerns about misleading rhetoric, this time with regard to history’s moral weight. Take Burke’s schematic description once again – a small community that has developed deep (spiritual) attachment, over a very long span of time, to particular spaces and ways of relating to these spaces. To make things more concrete, let’s say that this community recognizes that hostile others also stake a claim to the very same spaces, but sees itself as a victim of historical injustice that stretches even longer in time than the injustices suffered by indigenous tribes – “its” particular injustice has lasted millennia. Over the last half-century, however, the community has finally managed to return to what it sees as its rightful home, and it has no intention of ever relinquishing this home. The laws of the relevant state – that is, the state of which all the community’s members are citizens – have to date, as in Burke’s story, provided no clear ruling (or simply provided contradictory rulings) regarding (private) ownership of the spaces that the community deems sacred.

    All this sounds a great deal like – indeed, it is virtually identical to – the tale of the messianic Jewish settler movement in the West Bank. But I know few if any philosophers who are willing to take seriously the insistence of this movement that its members can rightfully claim ownership over any part of the West Bank, simply due to historical injustices suffered by their very distant ancestors. Nor do I know of any philosopher who is willing to argue that the settler movement can rightfully resist a democratic decision by the majority of Israel’s citizens to evacuate them in the name of both peace and minimal standards of universal human equality (the latter so blatantly and shamefully denied by these settlers in their daily treatment of their Arab neighbours). (to be clear, I don’t think that this primacy of the polity applies only to displacement, or only to the Middle East. It also applies to secession problems, for example, as they arise elsewhere. Thus for instance, as deep owners of all of Spain, all Spanish citizens, rather than only Catalans, have the “right to decide” whether Catalans can take Catalonia’s territory away from Spain. At the same time, the Israeli-Palestinian conflict does have some distinctive features, which I discuss in some detail in my forthcoming book).

    What broader upshots follow from all this? First, that any morally viable account of property has to be willing to view historical injustices as superseded at some point in time by stale expectations formed later on (per Waldron’s famous thesis, which, in strong contrast to Burke, I find obviously correct). Second, closely related, as so many opponents of libertarianism have long argued, our thinking about property ought to be fundamentally present and future rather than past-oriented. Third, our judgements about relations between a democratic majority and any given minority, no matter how “strongly connected” to particular spaces, are crucially mediated by various egalitarian norms, whose denial (whether by the majority or by the minority) dramatically affects our conception of appropriate political decisions in the relevant context. The deep public ownership model incorporates all three of these points. That it does so is a virtue, not a defect of the model.

    Now, there is obviously much more I can say, but since I have written a great deal already, let me end by highlighting some broader meta-theoretical positions that Burke and I actually share. At the level of (very) ideal theory, I too am actually not very thrilled about separate sovereign peoples. In other work, I have accordingly endorsed the idea of a world state, as a goal to which separate sovereign people in principle ought to strive. Given the rights of ownership my model assigns to them, these separate sovereign peoples have the moral authority to refuse to join together to form a global sovereign. Such refusal, though legitimate, may still very well be unjust (per my earlier response to Chiara). Nonetheless, if such a global sovereign were to emerge, then it would feature a single global “public” that has become – via political construction, rather than pre-politically – the ultimate, collective owner of all of the world’s resources.
    However, I agree with other parts of Burke’s work, that orienting our conduct in manifestly non-ideal realities around ideal visions of perfect justice is unwise and possibly even dangerous. Our real tasks lie with concrete political injustices as they arise in the here and now, and as they bear on the (reasonably) near future. With regard to these tasks, I remain convinced that the promise of deep public ownership outweighs it perils. And if I have responded adamantly to Burke’s critique in the preceding, it is at least partly because such firm critiques are essential in forcing one to own one’s views.

  8. Hi Shmulik and all,

    As Shmulik says, we’ve disagreed about this for a long time, so we’re unlikely to persuade each other on it! But perhaps we’ll persuade others one way or another. I’ll add a couple of notes here to try to clarify my concerns for those interested.

    My concerns are primarily about the basic plausibility of deep ownership itself, yes. I think Shmulik’s paper does a nice job of unpacking many entailments of that view. I just think it’s a mistaken place to start.

    To clear the field somewhat, I want to be clear that my parenthetical mention of indigenous peoples was not intended to invoke historical injustice. I agree with Shmulik that supersession can occur in all sorts of conditions, and that mere claims to have owned something in the past don’t carry dispositive weight. I have in mind current relationships to place and things, rather than past ones. Think Kolers rather than Nozick here.

    The issues of indigenous land rights in Canada that I have in mind are not issues of historical injustice. Instead, they occur in places where Canada has failed to reach clarity within its own legal procedures about who owns what. According to Canadian law, indigenous groups still may or may not own a lot of land in Canada – the current status of legal ownership is supremely fuzzy. Indigenous peoples do generally have deep connections to these lands, but the legal status of this attachment is unclear within the law of the political unit claiming the right to determine this once and for all.

    In this case, a deep public ownership model can take one of two forking arguments. Either it can argue (a) that the sovereign people of Canada has a right to set the property rights here however it wants, subject only to time constraints to ease transition, or (b) there are substantive right answers about who has the strongest ownership claims to what, and law should be restructured to match them. I think we should take option (b), and worry that the model of deep public ownership makes careful examination of that kind more difficult to engage in.

    I expect that Shmulik and I may continue to disagree about this. And if it weren’t about this, it would be other things! As he says in his comments, it’s a great deal of fun and always fruitful to try to push hard on arguments and figure out, as well as possible, why we endorse the things we do.

    Burke

  9. Thanks, Burke, for this follow-up. It’s very helpful. Among other things, I am happy to learn that you are willing to grant the suppression thesis – a positive surprise! (:

    Assuming suppression is granted, then I am going to repeat my suggestion in several earlier posts: that deep public ownership insists on the body politic’s authority to make decisions about property, but that this is compatible with condemning the body politic for making poor/unjust use of that authority. I am inclined to think that the Canadian legal ownership structure, once clarified, will have to give ample weight to the salient special attachments of tribal communities. If it won’t, it will very likely be unjust. But this fact does not, I think, impugn the idea that it is the Canadian people as a whole, through its elected representatives, that ultimately gets to make the relevant decisions as the ultimate owner of the relevant property.

    Unfortunately I can’t say much more than on this case, since I lack familiarity with the intricate details of the relevant politics, including the precise motivations underlying Canada’s legal fuzziness (motivations which matter, as I note in a moment).

    I do want to offer a few further thoughts, though, on the general question of how to treat a fuzzy legal regime regulating property, especially insofar as the fuzziness bears on distinct, vulnerable minorities. In some cases, at least (this may or may not be true in the Canadian case – am not sure), such fuzziness is intentional, insofar as it is meant to obfuscate and mystify government responsibility for morally unacceptable social conditions in general, and for blatant discrimination in particular. And I believe that the deep public ownership model performs an important service by demystifying such conduct, exposing it quite directly for what it is. In the cases I have in mind, governments use legal fuzziness to pursue social discrimination on the ground, even while formally paying lip service to their moral duty to treat all of their citizens as equals. The deep public ownership model can help us call governments out on such hypocrisy, by exposing in an especially immediate and powerful way the flawed normative premises on which the relevant hypocrisy rests.

    Another Israeli case, adjacent to, but distinct from, the case I mentioned earlier, can illustrate this thought. The case concerns a particular institution: Keren Kayemet Leyisrael, known in English as the Jewish National Fund (JNF). The JNF was founded in 1901 as a private company owned by the World Zionist organization. Its aim was to raise donations from Jews worldwide, in order to purchase territory in the Holy Land and prepare it for Zionist settlement. Between 1901 and Israel’s establishment in 1948, the JNF had acquired roughly 4% of the new state’s territory. Between 1949 and 1953, however, the government of the young state made the JNF the owner of sizeable lands, which more than tripled the JNF’s holdings. This move was explicitly motivated by the thought that state authorities had to manage public property with equal concern for all of the country’s citizens, including its significant Palestinian minority. In contrast, since the JNF’s goal was to develop land for Jews only, making it the owner of sizeable lands would ensure that these lands will be used exclusively by Jews. This rationale received formal expression when, in 1961, the JNF – by now a company under Israeli law – signed a “charter” with the state. The charter tasked a governmental body with the management of JNF lands, but made clear that decisions about these lands will be made in accordance with the JNF’s incorporation documents – meaning that, even though they are to be managed by the state, JNF lands could still be sold only to Jews.
    The practical impact of this slight of hand has fluctuated with the years: sometimes it has been enforced; at other times, it has been bypassed through administrative shenanigans, with almost all relevant parties (the courts, the legislature, civil society, individual buyers) essentially looking the other way. So this has all been mighty fuzzy. What I want to stress is that the deep public ownership model captures very directly why the trick pulled by the state – and all the ensuing fuzziness – is morally unacceptable. The model explains why transferring public lands from the state to the JNF could not legitimate managing these lands in a way that only accounts for Jews’ interests. The model does this by alerting us to a simple fact: the state can always reclaim – in the name of the sovereign body politic as a whole, including Jews and non-Jews alike – the very property that it has transferred to the JNF. But if it was the state’s decision, as a representative of the sovereign body politic, to vest certain rights of ownership of public property in the JNF, and if the state could revoke these rights, then it makes no moral sense for the state to allow itself – when managing the JNF’s lands – to engage in blatant discrimination that it would avoid if the relevant lands were simply to remain formally designated as state property. Morally speaking, at least, discrimination associated with state property cannot be justified by blurring the public nature of this property through a hybrid entity such as the JNF. Ultimately, such “justification” is merely an accounting gimmick: it may alter the balance sheets, but it cannot alter the moral calculus.

    Now, can the model perform any parallel service when reflecting on the Canadian case? I don’t know, because, as I indicated, I don’t know what precisely underlies the Canadian failure to clarify the relevant property regime. But I suspect this particular Israeli case can still be generalized in important ways to show why the deep public ownership model is not necessarily silent, nor counter-intuitive, in the face of legal fuzziness about property arrangements.

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