Property Rights and the Power to Transfer

Transcription

1 Property Rights and the Power to Transfer Daniel Halliday School of Historical and Philosophical Studies University of Melbourne Draft, October 2018 (7800 words) Note to UBC readers: This paper is destined for a conference proceedings and I won t get many other opportunities for feedback from lawyers. Please be brutal if you think that will help me, both respect to what I ve said and what I ve omitted. Apologies for typos and other roughness. 1. It s mine, therefore it s mine to give: The basic intuition about transfer John Stuart Mill once wrote that the ownership of a thing cannot be looked upon as complete without the power of bestowing it, at death or during life, at the owner s pleasure. 1 In other words, if you re not allowed to give something away, then it s not really been acknowledged as yours. Most people, I would think, find this quite intuitive. So, I ll call it the basic intuition: Property rights, whatever else they include, endow the bearer with the power to transfer ownership to some other party. While we may not, on reflection, endorse the basic intuition as an absolute, my sense is that most people find it intuitive as a sort of default where the burden of justification is concerned: If some party, or some rule, is going to prevent or reduce our power to give away our property, then there had better be a quite a weighty reason for this to be justified. Otherwise, the default holds and the power to transfer should be enjoyed by property owners in most contexts. The goal of this paper is to add something to efforts to sort out, at a theoretical level, whether this basic intuition can be vindicated. My main point will be that there is a way of including the power to transfer within a reasonable conception of property rights (and without buying into any really specific conception), but in ways that leave things open for restricting the power to 1 See The Principles of Political Economy (II.2.iv) in Mill (2004). I leave it open whether we should read this remark as normative or descriptive. Other elements of Mill s view suggest the latter (see main text below). 1

2 transfer without this going against the rationale for including it to some extent. This proposal comes after some negative arguments against other proposals. It is grounded in ideas about how the act of transferring property may represent an alternative to other mechanisms by which property can move around, namely market exchange and coercive redistribution, and that there are reasons for wanting this alternative to be present when the other two are undesirable or unfeasible. As a guide, here s how I will proceed. Section 2 goes over some fairly standard matters regarding the way in which political philosophers and legal theorists approach the problem of private property. My aim here is mainly to try and make it clear how the question of transfer is somewhat open across a variety of competing views about the nature of property rights, and to show how this paper can avoid making any really controversial assumptions in order for the main task to be intelligible and motivated. Sections 3 and 4 engage with some existing attempts to state the unity of property in terms of (respectively) the idea of exclusive use and the promotion of human agency. Section 5 develops the more positive proposal, and section 6 concludes. 2. Some motivations and background Although I think most people will generally assent to the basic intuition, I would like to suggest that the burden of proof lies on whoever wants to retain or defend it and not on anyone who might propose to challenge it. There are two principal reasons why I make this claim. One relates to the sort of status I think the basic intuition really deserves, and the second has to do with the rather tenuous connection it might (absent careful argument) have with more foundational ideas about what property really is. To articulate the first motivation: The basic intuition can quite easily be put under some pressure. It seems plausible at a very high level of abstraction (i.e., made as a claim about all property), but rather less plausible in a number of more specific cases. There is nothing particularly unusual about narrow 2

3 instances of ownership where regulation makes transfer difficult or even prohibited. If, for example, I buy an plane ticket I am not allowed to pass it to someone else with a different identity. For sure, this sort of rule may owe its justification to certain extraneous justifications, e.g. a need to keep tabs on who s boarding a flight for security reasons, but that is not really the point. However peculiar the justification might be to the case in question, I think it s clear that we don t regard such regulatory limits as depleting or offending against the sense in which someone still counts as the genuine owner of the thing in question. My non-transferable airline ticket is still my ticket after all, it s not allowed to become the property of anyone else! 2 Specific cases aside, I think the pressure exists even at the high level of abstraction. Very few people really cling to absolutism about property rights. That is to say, most of us would acknowledge that the power to transfer might be restricted in cases where some other important moral consideration is at stake. The question then becomes one of how easily such cases might arise and how their existence might be reflected in any general conclusions about how the power to transfer can be limited. This is in keeping with my suggestion that the basic intuition has merely default force. Even if this does mean there s some burden of proof to identify the particular conditions under which the power can be curtailed, this is not the same as there being a burden of proof on the logically weaker claim that there must be some such set of conditions. That s enough to motivate the work of this paper. The second is that the basic intuition doesn t have any obvious supporting justification at all. Though attempts to say otherwise make for the substance of two sections below, the fact is that the basic intuition does not apparently come from anywhere. That is to say, it is basic in the familiar sense that it is not arrived at via some appeal to distinct considerations that are actually the basic 2 There is probably scope for more debate about restrictions on transfer. Other examples may suggest that what is colloquially referred to as property of its bearer is in fact property of someone else. My passport and my university ID card are both marked with explicit assertions that they are the property of the British government and my employer. Such cases can be set aside because they involve something that can t be transferable and is not really owned, namely status as a citizen or employee. But the example of the plane ticket is different, as are a host of other non-transferable things. 3

4 ones where people s rights and entitlements are concerned. It is worth emphasizing that certain foundational positions on property rights are, I think, quite ambivalent, or even indeterminate, as to their implications for transfer. This is to say that what to say about transfer is of interest as part of any wider effort to work out how competing conceptions of property might differ, and which might actually support, deny, or revise the basic intuition. I take this to be of interest in its own right, or at least of interest as part of the ongoing wider debates about property. Now, the variety of ideas about the foundations of property is far too extensive to really get into here. I hope I can be forgiven for passing over it pretty quickly. But as I understand it, the two main positions here can be divided into forms of natural rights views and conventionalist views. Roughly, proponents of the natural rights view regard property as morally fundamental, insofar as its content tells us something important about people s entitlements with regard to material things, where this content is not derived from some other value, like total utility or rights that are recognizably different from property rights. 3 This view has its intellectual origins in the English philosopher John Locke and, in its contemporary secular form, is usually understood as founded on a basic human right of self-ownership. 4 This sort of basic claim is very hard to deny (nobody wants to suggest that humans can be owned by anyone but themselves). The idea is that a wider regime of property can be justified via the claim that property rights in external objects can be created when self-owning humans mix their labour with the external world, subject to (much debated) constraints. 3 Rawls may be an example of one who believes that property rights exist, but that their content is subordinate to other liberal values such as neutrality about the good life and the need for citizens to own some property in order to realize distinct ideals about democratic participation. This makes it easier to restrict property rights than other more basic rights like freedom of speech. For exegesis see van Parijs (2003: 223). 4 The most famous representative is Nozick (1974), but see also Mack (2010). There are interesting questions about how much work self-ownership was doing in Locke s own project. My sense is that that the emphasis placed by contemporary Lockeans on self-ownership is necessary to purge Lockean views of their theistic commitments, along the lines of property rights representing God s plan for humans to improve the earth. 4

5 Conventionalism, on the other hand, is more Scottish in origin, being usually traced to the work of David Hume. 5 The basic idea is that property is a legal artifact rather than a reflection of any deeper morality. This is not necessarily to downplay its moral importance, but rather to suggest that the content of a property right is dependent on what sort of prior theoretical considerations account for why property should exist and how its design, as a system of rules, might reflect such considerations. Contemporary conventionalists tend to see property as a bundle of subsidiary use rights or powers, e.g. the right to consume, sell, destroy, loan, or perhaps transfer. Much was done to refine this approach in the twentieth century, through influential work by figures such as Wesley Hohfeld, Anthony Honore, and Thomas Grey. 6 Talk of transfer as a power owes much to Hohfeld s way of carving up different elements of property according to differences at the level of legal practice. I will use Hohfeld s term but the details are not important. 7 In one way or another, all work seeking to identify the essence of property rights, or to develop any elaborate claim about what might decide which sticks are in the bundle and which are not, owes its framing to these works. It is not obvious what either conception immediately implies about transfer. By and large, natural rights theorists tend to err towards an absolutist conception, or at least seem relatively reluctant to endorse the idea that restrictions on transfer are easier to justify than other restrictions on property. 8 That being said, there was never a particularly elaborate view about transfer in Locke s thinking, beyond some discussions about inheritance that left things 5 See the Treatise on Human Nature (III.ii). 6 The key works are Hohfeld (1913), Honore (1960) and Grey (1980). Of the three, Grey is perhaps the most aggressive in distinguishing a conventionalist position from a natural rights position (see the discussion of exclusion below). 7 Roughly, transfer counts as a power in Hohfeld s sense because its exercise affects the position of the owner and some targeted other party. This is distinct from a privilege, such as the need to get an owner s permission before entering their home, which is not targeted and applies to all non-owners. This has led to one application of Hohfeld s view against the power of bequest, on grounds that it is incoherent as the deceased party cannot have their position modified see Steiner (1992; 1994: ). 8 I am not aware of any really sustained discussions of transfer that assume or apply a natural rights perspective. Nozick apparently changed his mind, at least where posthumous transfer is concerned, as can be seen by comparing his (1974) with (1989: Ch. 3). 5

6 rather open. In the closing pages of his Chapters on Socialism Mill spoke explicitly of property as not fixed but variable, and emphasized that transfer (or at least inheritance) was one of the more obvious of its variables. 9 Mill s conventionalism needn t be in strong tension with his apparent endorsement of the basic intuition, though the exegetical details needn t detain us. 10 Conventionalism is quite compatible with the view that property isn t wholly up for grabs: It may be that some elements in the bundle are harder to remove than others. The question for conventionalists, then, is of whether the power to transfer is at the core, so to speak, or whether it is at the periphery, or even whether it should be included at all. The question for natural rights theorists is whether their foundational commitments to self-ownership, or whatever it might be, could determine whether the power to transfer must follow. 3. Deriving the power to transfer (1): Exclusion One relatively popular candidate for unifying the bundle of use-rights constituting property is the general idea that each element of the bundle endows an owner with a means of excluding non-owners from whatever they own. This is popular within the natural rights tradition, probably because of historic Lockean preoccupations with the role of property rights in solving coordination problems, like commons tragedies in the case of agricultural land. David Schmidtz introduces the idea of exclusion in this way: At the heart of any property right is a right to say no: a right to exclude non-owners. In other words, a right to exclude is not just a stick in a bundle. Rather, property is a tree. Other sticks are branches, the right to exclude is the trunk Mill (1989). 10 One possibility is that Mill was making a purely descriptive claim when endorsing the basic intuition, i.e. that property would indeed be incomplete without transfer, though this needn t matter much from the point of view of morality or justice. 11 (2011: 599). In other writings, Schmidtz has suggested that this makes the idea of property conceptually prior to the idea of justice: Property s normative roots are to be found less in philosophical theorizing about justice and more in whatever the truth of the matter happens to be in a given time and place about what it takes for people to be able to prosper together. (2010: 96). It is interesting as to whether such thinking indicates a way of secularizing Locke s project in ways that rely little, if at all, on the idea of self-ownership. 6

7 Notice that this somewhat metaphorical, going beyond the normal reference to bundles. It is therefore hard to work out precisely what sort of commitment Schmidtz wants to make. Other theorists have been more ambitious. James Penner has been more explicit in proposing exclusive use of an owned thing as the unifying feature of property. According to Penner, the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things. 12 A nightclub bouncer has the right to exclude people from a nightclub, but does not do so in order to use the nightclub for himself. Instead he is paid by the owner, who is using the nightclub to generate profits from the club. The bouncer is not exercising the sort of exclusion that preserves or enables a privileged interaction with the thing in question, but the owner, by employing and directing the bouncer, does. Generalizing, the right to exclude serves as a means of preserving one s privileged relationship to whatever is owned. Exclusion is a means of ensuring that one can do certain things with one s property. On Penner s view, exclusion only matters when it s a way of unlocking some other value associated with ownership. What matters are certain interests we have, which cannot be effectively furthered if we can t own things. In this way, Penner apparently grounds exclusion on a fairly robust intuition about the ultimate purpose of property, i.e. that ownership plays a role in enabling one s flourishing. Penner s view has some immediate appeal: Many acts that look like paradigmatic sticks in the bundle appear to be acts of exclusion. Consumption, sole occupation, destruction, etc. of property are all ways of privileging oneself and keeping others from taking access. The transfer of property, however, is a bit more complicated. Penner realizes this. His response is to first point out that most transfers have some intention behind them, which can be analysed in ways that treat transfer as a sort of vicarious exclusion. In the case of gifts, for example, the donor wishes the transferred property to make the recipient better off. In his words, what matters is that we can typically only make sense of a gift by seeing it with reference to the gift-giver s intentions. In Penner s words, what matters is that when we give something to someone, we treat the use of the 12 (1997: 71). 7

8 donee as our own use. A gift constitutes the ultimate adoption of another s use as one s own. This claim depends on the idea that gifts essentially refer to the donor s intentions and purposes, and so are to be regarded as dispositions of his property. 13 In this way, giving a gift is supposed to count as an act of exclusion because the owner is able to exclude others from occupying the relevant part of the gift relationship. When I give a gift, the fact that I own what I give means that the gift exclusively represents my intentions, which get realized through the way in which the recipient uses the gift but not those of others. In other words, transferring one s property to someone else so that they may use it is still a way of using one s property oneself. Penner s theory is quite complicated but it is apparently coherent, even if we do not normally describe gifts and bequests precisely in this way. I suspect that there are some added theoretical advantages to which Penner doesn t actually appeal. For example, his view gives some grounding to the common practice of making gifts conditional, and our discomfort about seeing someone receive a gift and immediately destroy or sell it. (This contrasts with market exchange we typically regard it as none of our business what someone does with something they buy from us. We have less patience for anyone selling us something on conditions that restrict what we might do with it, compared to the patience we will show a gift-giver.) In spite of these possible advantages, Penner s theory is open to the objection that it is insufficiently general: He allows that there are some gratuitous transfers where the donor is trying to be strategic or merely obeying a social convention without really endorsing the spirit of gift giving. (My own sense is that such cases are common, as gift giving is a frequent part of social signalling, even if it is unduly negative to describe it as strategic.) In these cases, Penner wants to say that donors misrepresent or lie about their intentions. But it is hard to see why such cases should be discounted. Penner is less sure of what to say about bequest or posthumous transfer. This is partly because he denies the existence of posthumous interests, and partly because he wonders whether a 13 (1997: 88-89, italics original). 8

9 dead person can be said to be using their property through another person s use of it, something he is happy to say about inter vivos gifts. There is at least an intuitive difference here. In any case Penner draws no strong conclusion. 14 Perhaps this is correct, but it would invite the conclusion that Penner s view implies that inter vivos transfer stands a better chance of being integral to the idea of property than posthumous transfer. Given the place of inheritance in society, this would be significant. Developing the idea of exclusion in a different way, Thomas Merrill tries harder to extend the concept of exclusion to justify the right to bequeath. 15 Merrill ambitiously states that if one starts with the right to exclude, then it is possible to derive most of the other attributes commonly associated with property. 16 Merrill thinks that this set of attributes includes the right to bequeath. His defence of this position consists in the observation that a general right to transfer property exercise the owner s right to include others, but also to exclude him or herself 17. While this claim might be plausible when applied to gifts or inter vivos transfers, it s hard to make sense of the idea that bequeathing one s property is a way of non-trivially excluding oneself from it, rather than simply giving instructions for how it should be used after one s exclusion has already been secured by one s death. Indeed, this claim seems in tension with Penner s account of exclusion as being something that is done for the sake of protecting one s own relationship with the owned thing (though Merrill may simply acknowledge the incompatibility of different refinements of exclusion ). Even the opponents of the exclusion-based conception seem to want to interpret it in ways that make this explicit. For example, Larissa Katz construes exclusion by claiming that an owner is the last person standing after the exclusion of everyone else [so that] after the exclusion of others, the owner is left at liberty 14 See the discussion at (1997: ). In more recent work, Penner has developed the idea that property might be related to community in ways that support the practice of inheritance as something somewhat detached from the exercise of individual property rights. This is an interesting view, which I discuss below in section See Merrill (1998). I do not claim that Merrill s version of the exclusion-based approach is identical with Penner s, but I cannot find any differences that need to be emphasized, given the arguments in this chapter. 16 (1998: 740). 17 (1998: 743, italics original). 9

10 to use the thing. 18 Such language seems to presupposes the survival of the owner in order for the exclusion to be genuine. Merrill, however, suggests otherwise: The analysis of transfers upon death closely tracks that of transfers during life. In order to derive such a right from the right to exclude, we need to add only the clarification that the domain of the owner s right to exclude encompasses the right to direct who shall be included and excluded upon the death of the owner This clarification entails at most a very modest extension of the domain of the right to exclude. (1998: 743) This, however, strikes me as merely stipulative rather than argued. At any rate, the assumption that death is non-voluntary suggests that treating bequest as an act of exclusion simply trivializes what it means to exclude oneself, or says something radically false. Merrill might be right about inter vivos gifts, but his analysis suggests that bequests might be unlike other sorts of transfers, which leaves him in the same position as Penner. Again, this might not be the end of the world, depending on whether one thinks the basic intuition extends to bequest as per Mill s formulation. The bottom line is that the two attempts to develop an exclusion-based vindication of the basic intuition clearly go no further than inter vivos transfers, and that the case made for even going this far remains open to question. 4. Deriving the power to transfer (2): Agency The broad idea behind agency-based conceptions is that property amounts to a relation between a person and a thing, which aims at adding some valuable element of control, beyond mere possession. Theorists who defend the agency-based view often take some inspiration from Kant s ideas about the connection between ownership and rational agency. 19 Recent development of this approach has emerged as a sort of polemic response to the exclusion-based 18 (2008: 277). 19 References to Kant s thought continue to show up as a source of inspiration in contemporary writings on the agency-based conception, but not to an extent that requires any sustained attention to them here. For a more sustained discussion of Kant s views on property, see Ryan (1984: Ch.3). 10

11 view. Here, motivation seems to come from a sense that the exclusion conception fails to construe ownership as a way of exercising agency. Avihay Dorfman has summarized the force behind this point in a nice way: An adequate idea of private ownership must account for the distinctive way in which the law of property approaches private owners: as agents who exert their special authority over non-owners rather than as patients benefiting from the state s policing of non-owners with relation to owned objects. 20 Dorfman goes on to argue that the problem with exclusion-based accounts is that they reduce ownership to a merely passive relation of the owner towards what is owned. A right to exclusive use is ultimately just the right to say no in ways that will be backed, when necessary, by the state s coercive powers. Consequently, property is no more than an especially well-protected form of possession. This is problematic, because property is supposed to be something stronger than this. At least, any view of property as merely a strong sort of possession can t distinguish ownership from legal relations that are supposed to fall short of ownership, such as tenancy, except by difference of degree. Dorfman concludes that this concession prevents the idea of ownership from being an idea or concept that stands on its own independent feet. Less metaphorically, the point appears to be that property is qualitatively distinct from these other forms of legally protected relationships that people sometimes have with things they use, and an analysis should accommodate this. Similar views have been developed in recent work by Larissa Katz. 21 Katz argues that the exclusion-based conception is ill-equipped to explain some significant elements of actual property law. For example, Canadian law on aboriginal title prohibits strip-mining on aboriginal land but not eco-tourism. If property is simply about exclusion, it s hard to give any sort of principled reason for why this sort of difference should form part of the legislation. If, however, we think of aboriginal land ownership in terms of the ability of aboriginal peoples to exercise certain forms of control over their land, such as preserving its capacity 20 (2010: 3) 21 See Katz (2008), (2011). 11

12 to support hunting, it becomes easier to see why strip-mining is problematic while eco-tourism might not be. Generalizing, Katz concludes: The biggest threat to an owner s authority is not use of the resource by others but use that is inconsistent with her plans, the law preserves the owner s exclusive position not by ordering others to keep out but by obligating them to fall in line with the owner s agenda. 22 In Katz s terminology, property is thus more akin to sovereignty over a thing than about the ability to exclude others from it. Unfortunately, however, Dorfman and Katz have less to say about bequest than their counterparts supporting the exclusion-based conception. So I am going to rely on some clues embedded in their writing. Katz suggests that the agency conception gets some of its force from the appealing idea of nonsubordination. Roughly speaking, the point here is that owners come first as it were, regarding the usage of their property. When you own something, nobody else takes precedent over you when it comes to making decisions as to the use of that thing. Katz uses this idea to explain the injustice of entail, i.e. the feudal practice of requiring aristocratic estates to pass down a family line without subdivision or any discretion of the incumbent owner (typically to the male heir, i.e. primogeniture). Since entail prioritises the wishes of some original, perhaps long-dead testator, it thereby leaves the inheritor in a subordinate position to that testator. And this makes it less clear that the inheritor really owns the estate. If I have inherited some land and am prevented by law of entail from bequeathing it to anyone apart from my eldest son, then my ability to set the agenda for this property has been degraded. Katz concludes that the rule against perpetuities, that is, the prohibition of entail, is to preserve the status of ownership as a supreme position of authority 23. Katz s observations might help support the agency conception as a theory of property, but may not settle its full implications for the power of transfer. Prohibiting entail rules out an extreme interference in transfer but that isn t 22 (2008: 297). 23 (2008: 306). 12

13 equivalent to establishing an unrestricted power of transfer in place of that. Few other restrictions on transfer will have this character of making subordination so rooted in the will of some specific external individual. The crucial question, in the terms of the agency-based approach, is of whether any restriction on transfer would compromise an owner s ability to be an agenda-setter for their property. My sense is that transfer pales somewhat compared to other standard sticks in the bundle. Stripping an owner of some use-rights might be enough to leave that owner subordinated. Removal of other use-rights, however, might not do so. This is reflected, I think, in the examples that proponents of the view actually invoke. If I can t prevent a mining company from tearing up my land, then the company has subordinated me simply due to the way in which their usage of the land subordinates mine through the sheer impact of its effects. The eco-tourism case resembles the longstanding legal practice of easements, in terms of the intrusion by someone else being of a sort so minimal that any claim of subordination looks precious. There would be something absurdly precious about a landowner who tried to argue against a right of way that cut across a corner of some remote field on grounds that it left him subordinated. On the other hand, a right of way that sends a constant line of hikers through my bathroom arguably does subordinate my agency with respect to how I want to control my home. It is hard to defend the claim that any restriction on transfer is subordinating or otherwise detrimental to agency. This is because transfer is likely to be restricted specifically by taxation. This is not typically as intrusive as interferences like trespass or vandalism. In Adam Smith s words, taxes can be made certain and not arbitrary. The time of payment, the manner of payment, the quantity to be paid, ought all to be clear and plain to the contributor, and to every other person. 24 All of this is plausible enough. Applied to the relation between ownership and agency, the insight that can be recovered from Smith is that taxation constrains the exercise of property rights but, at least until taxes become too burdensome or their content too opaque, they allow an owner to make plans and adjust their use of property in ways quite compatible with 24 Wealth of Nations (V.II.ii). 13

14 ownership. In the case of posthumous transfers, inheritance tax provides more time to plan than any other tax! Ultimately, I suspect that the agency-based conception might do more to guide very specific restrictions on the right to transfer, rather than the general strength or weakness of this right. For example, if I bequeath a large sum to a university for the purposes of endowing a chair, I intuitively exceed the limits of this right if I stipulate that the occupant of this chair never be a female. The agency-based view can liken this to the case of entail, where my bequest is of a sort that doesn t really transfer ownership of the funds to the university, but instead seeks to merely extend my authority in an independently questionable way. How far this reasoning goes may be unclear, since the objection may be more about the content of my stipulation than its subordinating character: There seems nothing wrong with stipulating that the chair always be a professor researching a certain topic, but it s hard to say why this is less subordinating than the stipulation about gender (even though the two bequests clearly have a different moral significance for reasons other than the subordination of the recipient university). In summary, the agency-based view can probably play some role in explaining how the power to transfer has some importance, but perhaps not that it has any distinctive importance, given that there are many other uses of something through which an owner might enjoy authority over something. The prospects for any stronger claim than this are further weakened by the way in which taxation, when properly designed, does not subordinate an owner in ways that plausibly apply to various other infringements that a private property right might suffer. The bottom line, I think, is that the basic intuition is not vindicated. This is because transfer is merely one among various contributing factors to a property regime that satisfied the relevant condition about owner agency. But there is nothing in the agency conception that suggests why transfer, or even restricted transfer should be considered a necessary condition for owner agency, which is what would be required for the basic intuition to be vindicated. 5. What can we learn? 14

15 By way of a preliminary conclusion, I think the prospects for deriving the inclusion of transfer within any core or essential elements of property are quite dim. At any rate, two of the best developed theoretical attempts to assign a unity to property seem not to manage this. But there might be another way to settle this question: We can instead seek to justify the power to transfer simply by asking what might happen if it did not exist. Let s return to the basic intuition. Here is an (in effect) extension of Mill s claim from Gerald Gaus: We cannot, I think, say that one who has the right to exclude and manage but not transfer is unambiguously the owner, while someone who has a transferable liability right with right to income is not. Consider the principle of entail in the common law; an owner of an entailed property (such as a family estate) could exclude others at will and determine the use to which land was put and earn income from its use, but he was without the right of transfer. Was he the owner? Not without reason was such a person often described as the the holder of the property. 25 One vindication for the intuition as Gaus presents it is Katz s idea that entail involves subordination. Compatible with this claim, but distinct from it, is a claim that draws on the general need for property to move around for the sake of efficiency and even justice. The old objections to entail in early liberal writings placed much emphasis on the fact that an aristocratic stranglehold over the land. This is most evident in the work of Adam Smith, who complained (among other things) about the tendency for English forests to contain no trees. 26 The abolition of entail was about promoting the dispersion of property so that those who actually worked on it had an incentive to make it productive. If everyone had a sufficient amount 25 (2012: 103). 26 This is not a mistake the archaic use of forest refers to a hunting ground. Smith s complaint is directed at the foregone potential of using land for idle aristocratic pursuits instead of growing food. I say more about Smith s views on entail, along with other early liberals including Locke, in Halliday (2018: Ch.2) 15

16 of productive land, but nobody had so much as to encourage inefficient use, then everyone could prosper in ways that incentivized greater production. Much could be said about how far this sort of reasoning goes. It is worth discussing at length, as it reveals something important about how the case for a market society emerged from complaints about feudalism and inequality due to wealth concentration, rather than rather different objections to socialism or a welfare state. These questions aside, the idea to be retained is that a system of property requires mechanisms to prevent concentration and to keep assets moving around. Chiefly, this occurs by way of two mechanisms, namely market exchange and government coercion (e.g. taxation for provision of services and/or large public work projects). The main case for transfer is, I think, that sometimes a third mechanism is desirable, given failings of the first two. This may sound like an odd suggestion to make. After all, wealth transfers tend, in practice to concentrate wealth within elite families. This, at least, is what seems to happen when inheritance is not restricted for long periods of time, particularly when wage stagnation occurs due to slowed economic growth. 27 But this sort of observation, plausible as it is, really just reflects one way of including transfer within a property regime, i.e. one without much restriction which happens to coincide with a system of property that allows inequalities to emerge in the first place, such that transfer can perpetuate them. It may be perfectly possible to place restrictions on transfer that are compatible with it playing a more equalizing, or anti-concentration, role. First, it is worth saying something about what failings might attach to an economic system that relies on some combination of markets and state coercion to keep property moving around. These failings are such that the exercise of transfer might actually provide a degree of relief and thereby justify its inclusion within the bundle of sticks. Market failure and government failure are both real, though of course they can be used more or less precisely. The case against heavy reliance on governments is largely epistemic: Government agency suffers 27 See, for example, the importance placed on inheritance in Piketty (2013). 16

17 from difficulties in gather the sort of information necessary to run a planned economy. In part, this is supposed to be relieved by markets and their ability to move information around via the price mechanism. But on any view about how markets function, there will be some goods and services whose provision is not commercially viable, but where the sort of agency embodied by the government still doesn t measure up. The coincidence of market and government failure is, in effect, one foundation for having a charity sector. Broadly speaking, charities resemble market agents in relying on voluntary use of property rights, but are exempt from the constraints of commercial viability (charity law grants exemptions from taxes and, in some cases, support of other kinds). Charities may be and often are funded partly from tax revenues, but they still stand to do better when private donors can transfer wealth to them gratuitously. Whether this is a force for efficiency or justice depends, of course, on what kinds of entities get given charitable status. This is contentious, and there is room for good political philosophy in sorting it out. 28 But assuming that the right sort of agencies have charitable status, we have a reason for seeing transfer as a valuable element of property, constrained as it will be by what entities actually can be made the subject of a charitable donation. The combination of market and government failure might vindicate some degree of private transfer between individuals, too, and perhaps typically family members in the manner of inheritance. This possibility may be more remote than that of a well-functioning charity sector, but it is not outlandishly so. The basic idea is that it is quite possible for property to end up distributed in a relatively inefficient way, where a more efficient distribution could be reached by market exchanges but where incentives are such that the incumbent owners do not want to enter into these exchanges. One such example concerns housing: In an era of unstable prices, it is possible for a situation to emerge in which owners do not wish to sell either because they will make a financial loss and/or they are waiting to prices to improve at some point in the future. The result may 28 For one attempt to do so, see Harding (2014). 17

18 be a situation in which young families cannot purchase a home while many houses continue to be occupied by aging couples who would be better suited to small accommodation. If the market won t bring about the right redistribution, then something else is needed to break the inefficient distribution. This could be the state, which might redistribute housing or (less radically) seek to create incentives to sell. But this is very difficult to do without unwanted side effects or false negatives/positives. A more desirable scenario is simply one in which aging parents transfer property by way of inheritance to their adult children. I am somewhat hesitant to rely on this example, given the problems it raises regarding fairness (what can be said to young families seeking to buy a home but do not have the luxury of propertied parents?). But a generalization can still be made: Part of the value of transfer is its potential to keep a private wealth stock dispersed. Markets do not always work to ensure this, and government control of assets by definition involves making private wealth public (this may have virtues, but these may well be compatible with seeking to maintain a degree of private ownership). It is sometimes said that the problem with inheritance isn t that some people have it, but that not everyone does. What to conclude from this by way of regulating inheritance and property remains up for debate, but the point is that this truism embeds a concession that private wealth transfer would be valuable so long as it worked in a certain kind of way. My point is not that the exercise of transfer comes close to competing with markets or governments in getting things done. It may occupy a very distant third place when it comes to facilitating desirable movement of property and wealth. But third place is not a non-starter. I ve suggested that private transfer of wealth is valuable when it supports charities (given some view about what activities ought to be granted such status), and within families so as to shore up a middle class (construed, roughly, as a class that owns their own homes). This is a far cry from unrestricted transfer, which is quite likely to keep wealth concentrated. But these other exercises of transfer need not do so. 18

19 What s the bottom line here? I ve offered what may sound like a deflationary position. Compared to some of the more ambitious proposals discussed above, this is probably accurate: The basic intuition remains unvindicated, I suppose. But in one respect the proposal is not deflationary, because it can ground quite a clear and even radical view about how far the power to transfer must go, and how far it must not go: I have said that a power to transfer is justified insofar as it helps property disperse, or at least become distributed in ways that might (somewhat) promote efficiency. By the same token, a power to transfer is unjustified when it has a somewhat opposite effect, i.e. where it serves to keep property concentrated in ways that promote inefficiency or even injustice. This was the point underlying the old opposition to entail as just described. This isn t quite the basic intuition that we can transfer what we own, to whomever we like, just in virtue of it being what we own. But it is a view that makes a place for the power to transfer nonetheless. 5. Conclusion The power to transfer is justified insofar as it remains a useful means of ensuring that property moves around in ways that increase the chances of more efficient distributions. Transfer is unlikely to be a primary mechanism through which this can occur, as opposed to market exchange or state redistribution of property, both of which (depending on one s views about both efficiency and justice) have greater potential. But it is possible to think of relatively straightforward scenarios in which transfer would provide genuine relief, given the way in which conditions can emerge in which obstacles to these other mechanisms are known to arise. Accordingly, transfer may be an important complementary mechanism to other mechanisms about which we must continue to direct the bulk of our theorizing. REFERENCES Attas, Daniel Fragmenting Property Law & Philosophy 25: Buchanan, James. 19

20 1976 The Justice of Natural Liberty, reprinted in The Collected Works of James M. Buchanan Vol. 1: The Logical Foundations of Constitutional Liberty (Indianapolis IN: Liberty Fund): Dorfman, Avihay Private Ownership Legal Theory 16(1): 1-35 Gaus, Gerald Property in D. Estlund (ed.) The Oxford Handbook of Political Philosophy (New York: Oxford University press): Glackin, Shane Back to Bundles: Deflating Property Rights, Again Legal Theory 20: Grey, Thomas The Disintegration of Property in J. Chapman & J. Pennock (eds) Nomos 22: Property (New York, NY: New York University Press). Halliday, Daniel Is Inheritance Morally Distinctive? Law & Philosophy 32(5): The Inheritance of Wealth: Justice, Equality and the Right to Bequeath (New York: Oxford University Press). Harding, Matthew Charity Law and the Liberal State (New York, NY: Cambridge University Press). Harris, J.W Property and Justice (New York, NY: Oxford University Press). Honore, Anthony Ownership Oxford Essays in Jurisprudence 107 (1961): Hohfeld, Wesley Some Fundamental Legal Conceptions as Applied in Judicial Reasoning Yale Law Journal 23: Katz, Larissa Exclusion and Exclusivity in Property Law University of Toronto Law Journal 58: The Regulative Function of Property Rights Econ Journal Watch 8(3): Mack, Eric The Natural Right of Property Social Philosophy & Policy Merrill, Thomas Property and the Right to Exclude Nebraska Law Review 77: Merrill, Thomas & Smith, H.E What Happened to Property in Law and Economics? Yale Law Journal 111(2): Mill, John Stuart On Liberty and other writings ed. Stefan Collini (New York: Cambridge University Press) Principles of Political Economy (New York: Prometheus Books). Munzer, Stephen A Theory of Property (New York: Cambridge University Press). Nozick, R Anarchy, State and Utopia (New York: Basic Boos) The Examined Life: Philosophical Meditations (New York: Simon & Schuster). van Parijs, Philippe Difference Principles in S. Freeman (ed.) The Cambridge Companion to Rawls (New York: Cambridge University Press): Penner, James The Idea of Property in Law (New York: Oxford University Press) Intergenerational Justice and the Hereditary Principle Law & Ethics of Human Rights 8(2): Piketty, Thomas. Capital in the 21 st Century (Cambridge, MA: Harvard University Press). Ryan, Alan Property and Political Theory (New York: Blackwell Press). Schmidtz, David Property and Justice Social Philosophy & Policy 27(1):

21 2011 Property in G. Klosko (ed.) The Oxford Handbook of the History of Political Philosophy (New York: Oxford University Press): Smith, Adam The Wealth of Nations (New York: Penguin Books). Steiner, Hillel Three Just Taxes in P. van Parijs (ed.) Arguing for Basic Income (London: Verso) An Essay on Rights (Malden, MA: Blackwell). 21