Property Rights Essay
In law, the study of space insists primarily on the material world as essentially constitutive of law. In the traditions of jurisprudence, both the analytical and the continental traditions,, law has too often been treated as a series of abstract propositions, a structure of normsin search of application.
Admittedly, the law understands itself as spatially delimited. If relatively modern aspects of law’s claim to authority, the notion of a territory is a central(Blomley 1994, McVeigh 2005). But it is assumed, at the same time, that it exerts the same and absolute force throughout its jurisdiction. Instead, in arguing that how and what law means is influenced by where it means, legal spaces draws on the tradition of legal pluralism (Griffiths 1986, Falk Moore 1978). Yet, unlike much of the work of this tradition, the diversity of legal norms and the disparateness of legal effects was explored by the legal spaces, not just in terms of the constantly working elements to generate and differentiate it, but the also the physical element. The social and the physical are likewise mutualy implicated.
The right to property, said John Locke (1632-1704) is virtually unlimited. The account of property rights is needed, because there is an initial appearance that the land is commonly owned by any person or owned by all. He also added that it is no good to have a general right to property, because there is a possibility that any person can assert property rights over it.
The prior right to self-preservation is what he reasoned out, which, according to hin is derived from the duty to preserve mankind. There’s another connected duty, not only to preserve but to improve mankind by improving the common stock. So, he means that improvement, or the development of mankind is through having their own property so there is a boundary of responsibilities for every human. Throught the properties, the human’s performance will be reflected on it’s property or on how a person takes care of the property.
The rights to property has been justified, that is why all human in the world has their own properties. In whatever terms, there are due process by the court and the owner to document the properties under their names and responsibility.
Naively, things or land is what we tend to think of property. We may know that there is a species of “intellectual property”, but it doesn’t quite seem real, which may be why there are far fewer social sanctions for ignoring it.
In the concept of property, there were three, and lately, the fourth one came out by Kant and Nagle. The three are the pre-political, economic or personality.
The pre-political is a concept where the right to property is not given to people by the government, but is only protected by the government. The acquisition, use and disposition of property is pre-political and distinct from coercion. The question of what rights property gives is logically prior to the remedies that the legal system might provide when those rights are violated. Locke and Blackston’es view is a natural fit both with the naive views of non-lawyers and with classical liberalism/libertarianism.
By mixing human being’s labor with natural resources, they live individually in a pre-political state of nature create property. Eventually, humans enter into social contracts, in order to protect their property, thereby establishing governments that by definition have limited power over property. Without citizen consent, the state is forbidden totake property because the fundamental purpose for which the government initially established will be violated. From this perspective, property is viewed as a pre-political. The positive law has no role to play in its definition; nor can property be regulated by positive law except on payment of compensation.
According to Jonathan Rowe of the Positive Liberty, “…in contrast to the legal positivists, the fundamental rights, property included, have a moral basis to them, that they are prepolitical – antecedent to majority rule (2006).” This is, after all, what our ancestors believed.
The Declaration of Independence used the word “unalienable” to describe such rights. Even the French’s Declaration of the Rights of Man refers to property as “an inviolable and sacred right.” Proving that such rights have such a, we could say, “metaphysical-like” basis is no easy task. But modern research and philosophy shows some arguable basis for unalienable rights being grounded in human nature.
Most resonant in the Lockean influence on Virginia’s slaveholders was the point that property was pre-political and its corollary that “individuals” formed civil governments to ensure their property. Thus the primary purpose of government was to protect such property. Significantly, Locke also considered slavery pre-political and thus reconciled it with republican government.
The thought that has always contained multiple and mutually conflicting lines of argument; the minimalist contractarianism so influential today represents the weaker of two main constellations of claims is the social contract. The Kantian contract theory’s case that emphasizes the bedrock principle of consent of the governed, instead of the mere heuristic device of the exit from the state of nature.
Two classic difficulties are resolved in such a shift: traditional contract theory’s a historical presumption of a pre-political settlement, and its impossibly high demands on citizens seeking to practice self-rule. In Kant’s political works, rather than the ethical works through which political theory is usually interpreted, the solution of this problems will be foud, in his formulation.
The account of Kant in the property rights is embedded within his general ethical system and centering on the categorical imperative that has been described in the Groundwork and the second Critique. If we are to understand the ultimate ground of Kant’s thinking on property rights, we msut see his shorter political essays. He has writings that provide central details of his accounts on the property right.
Legitimacy is acquired in property claims, not through tha fiat of he sovereign but through a complex process of negotiation among private individuals. As adjudicated by public officials, where the starting points for such negotiations are determined by occupation, taking control of occupation of a disputed land.
To the settled ownership possible in civil society, we must make sense of Kant’s account of movement from the natural condition of a merely provisional ability to acquire.
There are two kinds of development: the development from the natural condition to the local civil condition on the one hand, and the development from the local civil condition to the global civil condition on the other. If we have this two kind of deevlopments, we can now make a conclussion that the development or progress toward a civil condition has to be understood as a gradual affair for Kant, so that ownership in the progressing state is continuous but ever decreasing, provisional characteristics.
Ownership becomes more and more settled, as time goes by. Further development toward the potentially unattainable ideal of a fully cosmopolitan globe is juudged to have occurred. The qustion of he ownership, however, are not fully settled until the attainment of the ideal cosmopolitan condition.
This concludes that we must secure the ownership in the property. The assurance in the right for the property should be more fixed and accurate. We came up to this idea by analogizing Kant’s and Nagle’s claim for the cosmopolitan order. Thus, to move toward, we must attempt a situation where there is a confederation of states that both properly preserve and respect the freedom of all the individual through a right set of external laws, and also deal with each other as states bound by law, rather than as competing miiltary powers.
Even if the scheme of ownership endorsed by the president or the executive leadr of the state is wildly at odds, with the true facts of ownership, this for Kant and Nagle, is not reason enough to disobey the leader of the government. Everybody must establish that theft occurs before disobedience is potentially permissible.
Furthermore, it is not all clear that the two authors would ever allow for more than passive opposition to the president. An active attempts to overthrow a president who is deemed unjust has never been suggested by the two. Since the judges of the very state that the leaders are the ones who must be responsible in the property matters, or in clearing the dealings of property rigths, building that the occurance of theft may cause problems, as long as one is not a judge allowed to rule on such topics by the undergirding constituiion in the state.
The rules and regulations that are having the final intention of progressing social inequality are unapproved by Kant and Nagle, even if they might endorse reduction policies. The two are a classic liberated when it comes to acquired rights. For them, the goveernment is to act only for protection of the properties.
It seems appearing that Kant and Nagle do not anticipate the socialist politics, but it has been a tradition to recognize that that was just in response to the vision of the capital accumulation and market investment as harming agrarian (Hegel et al.) and labor (Marx et al.) interests.
The reading of Kant as a classical liberal-a reading particularly dominant in the German-speaking world-seems to me the only one that is credible insofar as one wishes to remain true to both the spirit and letters of Kants writings. However, it should be noted that, in the English-speaking world, there have been numerous attempts to reconstruct more socialist-friendly versions of Kant’s account of property rights.
Taxes for reasons of state are the only exception that the two author mentioned to the balancing. These taxes includes the budget for the defense and miitary, and should include also for the poor relief in some other cases. However, they have specified the general purpose of the civil conditions. As such, it must be understood that what they mean for the taxing issue is not in terms of the contemporary notions of a social justice seeking to make security on the positive rights to some alleged set of basic products. It is because, on their part, in terms of a duty on the part of the wealthy to contribute to a situation in which their property rights can be properly protected against any threat or violation.
Nagle and Kant’s point is that, something might have to be done in the way budgets for all the government activities are allocated, because they seems to understand that only those who have the complete resources can comply for the necessaries, and those poor, who do not have the resources, can not. For the sake of the social equality, they do not allow the state redistribution of property, and they do not ever say that it is better for the government to redistribute property. They merely allow that those who have the resources might sahre what hey have to make the development that is wanted by all will be attained.
One counter-argument here might be that Kant did not have a gradualist view of the exit from the statue of nature, but in fact embraced an all-or-nothing view, such that civil society is meant to allow one to keep what one had in the state of nature, but where additional functions of achieving social equality may be superadded to the original property-rights protective function as the legislature deems appropriate.
They know clearly that the aristocratic heads of a society could err on how they commanded the commoners, even if their valid commands are to be obeyed. they also abhors democracy with equality. Moreover, they instead favor a republican constitution protecting the freedom of all people, and which makes it impossible for the people to use an executive power against the single individual without his consent. Of course, they have taken pains in emphasizing the need to respect everyone’s right to property, if the external freedom of each is equal to others.
One wonders why they put such emphasis on the despotism associated with rule by the demos if it were not the case that they are greatly concerned to have the state protect the right of each to keep what is his own in a more than formal way. If both the aristocratic ruler and a ruling demos can go wrong in its use of civil law, it must be the case that there are a priori standards defining what are proper applications of external law. It cannot be the case that the majority’s views of what constitutes the correct scheme of ownership simply define who owns what, even if this view is expressed through some representative, deliberative body, as in a republic.
Rather, Kant’s desire to see such a body rule must be understood as a belief in the superior ability of such a body, relative to an aristocrat or to the demos, to arrive at a proper interpretation of who owns what. In this case, since we are dealing with a moral issue, the ability in question is that of seeing a noumenally grounded situation. Who owns what is ultimately determined by a priori laws, and not just any set of empirical decisions made by legislatures. All empirical decisions must be in keeping with the a priori.
It is not merely to legislate, with any non-arbitrary set of principles that reflects majority feeling, in accordance. The appropriation to legislate is based on the deliberative discovery of a priori laws of morality generally. These laws are not always about what all individuals can be made to accept (through coercion), but are usually about what all individuals can choose to accept (through the free exercise of the will). In contrast to these two scenarios of enlightened majority rule and enlightened paternalism, the scenario they recommend is one which the representative body strives to properly interpret the nature and in application of the a priori laws that specifically govern questions of what is mine or thine.
We must notice, in concern of the priori rules they recommend, that it is a maximum amount of freedom that is not to be pirated. It is not a question of everybody being made to have an equal external freedom. Their point is that, there is no one, either the private individuals or agents of he state to use coercion in contrast to others. Unless, maintaining or doing it so is so necessary to protect the freedom that others possess or the self.
Since we are dealing with freedom that could potentially be restricted, otherwise, it would hardly need legal protection, we have to conclude that they are referring to freedom that could, at least theoretically, be possessed to different degrees by different individuals. Obviously, we could not conclude any such thing if we were talking about our freedom as beings who are rational and thus free to act from reason instead of mere inclination. Such coexistence of the noumenal freedom of human beings must be thought always to be possible regardless of empirical circumstances.
Otherwise, the categorical imperative would have to be only a hypothetical imperative, and this is a contradiction in terms. It is clear, then, that the external freedom with which coercive laws deal is of a very different character than is our noumenal freedom, despite the fact that the latter kind of freedom founds the former. And so we must ask: What sort of freedom is it that, despite having a noumenal foundation, will vary in extent from individual to individual, and that can be restricted by coercion? This must be a freedom to make use of what is mine.
Respect for the right of property as opposed to respect for the government or the rulers, heads, or president of the state, as claims for the right is therefore entangled in a somewhat gloomy scenario. In order to be sure against violence, one must submit to the political, even probable, violence of the sovereign, where one’s only comfort is the thougth that anarchy would leave one less secure.
Luckily, however, if we consistently follow the train of thought by which we construct this depressing dilemma, we also have to understand them to allow that there are some means by which we can work toward a situation in which questions of ownership are settled and property rights are respected.
First, although we must generally obey the ruler, head or the president, they advocate the rights of the citizen, as public intellectual, to question the activity of the ruler, head or the president.
Second, they argue that every state must ultimately be bound by a republican constitution. This is significant, as a limited democracy is the prototypical republican state, and a limited democracy allows the citizen to advocate changes in the law and in the behavior of the state ruler (here understood as a moral person rather than a particular, living human being). There is also the possibility of influencing the judiciary, even if this branch of government is meant to be above the power of the demos in some significant ways-where this applies even to the upper-echelons
of the demos. Therefore, in esteeming the republican state, they allow for further means by which the individual can act as a citizen to bring about a settled ownership situation, conjoined with full respect for individuals’ property rights.
Still, we can find some additional support for the claim that the state cannot determine property-ordering by fiat, democratic or otherwise. The following passage from the Metaphysics of Morals is key to understanding their account of the gradualist nature of the move out of the state of nature:
No one is bound to refrain from encroaching on what another possesses if the other gives [one] no equal assurance that he will observe the same restraint toward [one]. . . . [It is] not necessary to wait for actual hostility; one is authorized to use coercion against someone who already, by his nature, threatens [one] with coercion. (Quilibet prae- sumitur malus, donec securitatem dederit oppositi. Given the intention to be and to remain in [the] state of xternally lawless freedom, human beings do one another no wrong at all when they feud among themselves; for what holds for one holds also in turn for the other, as if by mutual consent. But in general they do wrong in the highest degree by willing to be and remaining in a condition that is not rightful, that is, in which no one is assured of what is his against violence.
This Metaphysics passage is fascinating in that we find them allowing for the use of violence against the other even before violence has been initiated against one. The view is conjoined with the Latin motto: The party who displaces another’s right, has the same right himself.
Journal of Libertarian Studies 18, no. 3 (Summer 2004)
Kant, Perpetual Peace, p. 101.
Kant, Metaphysics of Morals, Ak. vol. 6, p. 01- 267.
See, e.g., Alexander Kaufman, Welfare in the Kantian State (Oxford: Clarendon Press, 1999); and Paul Guyer, Kant on Freedom, Law, and Happiness (Cambridge: Cambridge University Press, 2000)
Kant, What is Enlightenment? See also the discussion of the philosopher-scholar in Immanuel Kant, Der Streit der Facultten in drei Abschnitten [Conflict of the Faculties], in Kant, Hauptwerk, Ak. vol. 7, pp. 1115, esp. pp. 28Ð29.
University/College: University of Chicago
Type of paper: Thesis/Dissertation Chapter
Date: 17 February 2017
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