The relationship between property and morality has been obscured by three elements in our intellectual tradition. First is the assumption, which can be traced to Bentham, that property is a pure creature of law. An institution assumed to be wholly dependent on law for its existence is unlikely to be infused with strong moral content. Second is the related tradition, also Benthamite, of examining questions about property law from a utilitarian perspective. Utilitarianism is, of course, a moral theory. But in its modern applications, based on price theory and cost-benefit analysis, it adopts a framework largely indifferent to questions of individual rights and distributive justice, which many consider the hallmarks of a moral perspective. Third is the tradition, stronger perhaps in academic circles than in popular thought, that associates property with immorality. Starting with Proudhon's slogan that "property is theft," and building through Marx and Engels with their call for the abolition of private property, this tradition has put property on the defensive in the minds of those drawn to thinking of public policy in moral terms.
This Essay seeks to challenge the conventional wisdom that dissociates property and morality. We hope to establish two propositions. First, no system of property rights can survive unless property ownership is infused with moral significance. By this, we mean that the differentiating feature of a system of property – the right of the owner to act as the exclusive gatekeeper of the owned thing – must be regarded as a moral right; intentional violations of this right, either by unlicensed invasions of owned things or unconsented takings of owned things, must be regarded as immoral acts. Second, the modern American legal system, at least with respect to this core aspect of property, does in fact adopt such a moral perspective.
Thomas W. Merrill & Henry E. Smith,
The Morality of Property,
Wm. & Mary L. Rev.
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