"Distributive Justice and the Complex Structure of Ownership" Philosophy and Public Affairs 23 (1994): 225-50, by John Christman (Virginia Polytechnic Institute and State University)
Reviewed by Paul Weithman, University of Notre Dame, (Paul.J.Weithman.1@ND.EDU)
hristman argues against conceptions of ownership he thinks unduly simplistic. According to the monolithic bundle (cf. 226) conception, X owns Y just in case X enjoys a "bundle" of rights to control, consume, alienate and profit from Y. According to this conception X's ownership is infringed upon if those rights are limited by government action. According to the aggregated bundle conception, rights connected with ownership may be "allocated or traded separately for the purpose of achieving optimal outcomes" (ibid.). Christman argues that ownership has a complex conceptual structure. Rights associated with it fall into two categories: control and income rights. Control rights are "rights to use, possess, manage, alienate, consume (destroy) and modify the owned asset" (231). Income rights are "rights to transfer and gain income from goods" (ibid.).
Christman offers two criteria.
(i) Control but not income rights entail the "consent and cooperation of others".
(ii) The two are distinguished functionally, by the interests they protect.
Control rights protect the owner's interest in autonomy, where autonomy is understood in terms of having authentic preferences. Cultivation of authentic preferences, Christman claims, requires control over one's environment. Income rights, by contrast, serve individual and social interests in the distribution of wealth. The first criterion doesn't establish a clear a distinction. Christman himself notes the rights to manage property and to transfer by gift or bequest (231-2), which seem to fall under control rights but which imply a relation between the owner and another. Consider two more possible counterexamples.
(i) Control rights include the right to "modify" property. Consider the right to make property more appealing. Since `being appealing' implies that there are others besides the owner who find the property pleasing, this right entails that the owner stand in relation with others even if that relation does not depend upon their "consent and cooperation" strictly construed. (ii) The right to operate a commercial enterprise on one's property. This fits Christman's definition of income rights since these are "rights to ... gain income from property" (232); immediately after this definition, Christman elucidates it as "the right to alienate and to retain goods received in trade", which doesn't capture this right. This right fits more comfortably under control rights, since control rights include the right to use one's property as one likes. But the right to operate a commercial enterprise requires the cooperation of others, if the operator is to exercise that right for long.
The second criterion offers too impoverished an account of interests served by control rights. Because it fails to capture important social interests served by these rights, it could be exploited to license certain rights (in the name of autonomy) which are morally indefensible.
Note that non-intellectual property requires maintenance and that under a scheme which recognizes control rights, maintenance falls to the person who exercises them over the property in question. The provision of maintenance can develop virtues associated with responsibility, nurture and care-giving. This is most obvious when the property is living, like a pet or rosebush. But given the variety of things people are attached to, the object of care could be almost anything. Since human beings have an interest in developing these virtues, control rights protect this interest. Control rights protect social interests as well. First, it is in the social interest for individuals to develop the virtues of nurturing and care-giving, particularly as regards pets, property like arable land (the use-value of which must be preserved). Second, goods in whose preservation society has an interest -- works of the visual arts, agricultural property, houses -- will be adequately maintained only if control rights are exercised by individuals with the virtues in question. Thus control rights protect important societal interests. Part of the moral justification of such rights is that they are necessary for protecting these interests.
Christman argues that recognizing the distinction permits debate about distributive policy to be reconceptualized. Arguments that confiscatory taxes are unjustifiable are often premised on the claim that they infringe unjustifiably on property rights. The correct view, Christman would maintain, is that any income rights reflect a distributive policy. To impose taxes is not to infringe upon income rights, but to specify them.
Suppose control rights are essentially connected with other interests than autonomy, including social interests in maintaining use value of durable goods and land, preservation of stock of housing and cultural patrimony. Then restrictions on the use or destruction of one's property are not infringements on control rights. They are specifications of them which further social interests, just as imposition of taxes is a specification of rather than an infringement on income rights. Thus I believe it morally justifiable to forbid the owners of great works of art to destroy them, or to forbid land-owners carelessly to dump hazardous chemicals upon it. I conjectured that the right to operate a commercial enterprise on one's property is a control right. It is morally justifiable to regulate people's operation of hazardous waste dumps on their property. This regulation, like others mentioned, is not an infringement on control rights, but a specification of them which limits autonomy to promote other interests intrinsically connected with control rights.
I cannot claim originality for the expanded view of control rights suggested here. The expanded view of control rights together with their distinction from income rights is implicit in Aristotle's discussions of property in the Politics. Any adequate reconstruction of Aquinas's views on property -- as found in his commentary on the Politics and on Israelite law -- would show that he relies on this view of control rights. Perhaps these interpretive conjectures are anachronistic. If so, I would modify them: an attempt to update the property theories of Aristotle and Aquinas so that they apply to present conditions would distinguish income rights from expanded control rights. It is a virtue of Christman's essay that it suggests how this might be done.