The Extent of Private Property Rights

In some ways, a right to private property is similar to a right to privacy: a private property right is a right to control access to certain goods that you – as an individual or as a group of individuals – mark as “yours”, and access is of course also fundamental to privacy rights. Stated differently, a private property right is a right to make independent decisions about your goods (sell, keep, use, destroy, consume or transfer as you please) and to exclude interference with those decisions by other would-be users of those goods. If others attempt, without your permission, to use, transfer or modify goods that are “yours”, your right to property gives you the power to repel this kind of interference, with the help of the state as the enforcer of social rules (we don’t want people to rely on their own strength to enforce their property rights, because we don’t want to jeopardize security rights such as physical integrity).

Access control and the power to exclude are central to both property and privacy rights. One could even make the case that private property rights are a subset of privacy rights (no privacy without your own house for example). This link is probably why in the modern capitalist economy the words “property” and “private property” are usually synonymous. There are of course other types of property but, rightly or wrongly, those have lower status in modern economies. Interestingly, although other types of property such as common or collective property have their own logic and problems, issues of access, control and exclusion may also be relevant to them, as is evident from the “tragedy of the commons“.

Let’s leave the relative status of different kinds of property to the side for now, and focus on private property. There are two major problems with the claim that people generally have a right to private property: why is it a good thing to have private property over certain goods, and which goods can you claim as “yours”.

Possible and reasonable answers to the first question include:

• “private property is necessary for privacy or some other value”
• “it’s necessary for production, commerce, exchange and hence prosperity”
• “it encourages responsible use of resources”
• etc.

Possible answers to the second question:

• “first come, first take” (so-called first occupancy theory)
• “all existing distributions of property are just”
• “take but leave enough for others” (Lockean proviso)
• “equal shares”
• “goods to which you have added value by way of your labor”
• “none”, meaning there can only be common ownership, collective ownership or some other none-private form of property
• plus a load of other possible answers.

However, let’s also leave these questions to the side for a moment. What I do want to look at now is the extent of property rights. A right to exclude others from the use of your property or a right to decide to use that property in a certain manner, may, in some cases, leave others worse off, or may even lead to their death. In general, and depending on the strength of the arguments in favor of private property (see above), you have a right to private property even if others have a greater need for the resources you own. If the needs of others would always trump property rights, then those rights wouldn’t be rights at all. It’s only when some threshold level of need is reached that the needs of others should be allowed to trump your right. Your right to property should not result in the physical suffering or death of others. Especially in the case of scarce and necessary goods, we need limits on the extent of property rights, even though property rights may perhaps only make sense when we’re dealing with such goods (why limit access to goods that aren’t scarce or necessary?). These limits are justified because we’re dealing here with a conflict of rights: property rights versus the right to life or the right not to suffer extreme poverty. As in all cases of conflicting rights, there needs to be a trade-off, and the one I’m defending here seems reasonable.

Hence, a justification of private property should never be limited to arguments about the benefits of private property but should instead find its place in a justification of rights in general, including the rights of those who are excluded, by the property rights of others, from the use of scarce and necessary resources. And any justification of rights in general needs to address possible conflicts between rights.

Access control and the power to decide and exclude are inherent in the right to private property but are not absolute powers. In this respect, the right to property is not much different from other human rights. As a society, we have to balance each and everyone’s property rights with each and everyone’s other rights, and individuals can’t demand that the state enforces their property rights – or that they themselves can enforce their property rights – when we all, as a society, have decided that in a particular case the balancing of rights has resulted in a priority of non-property rights.