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.