Wednesday, October 24, 2018

Ownership and ontology

We can own dogs, trees, forests, cars, chairs, computers and cupcakes, but of these examples, only dogs and trees really exist. Many of the things we own do not really exist. This makes me sceptical of the idea that there are strong property rights independent of positive law.

You might stop me by saying that my ontology is simply too restrictive. Maybe forests, cars, chairs, computers and cupcakes all really exist. I doubt it, but the examples of non-existent things we can in principle own can be multiplied. It is just as reasonable to talk of owning the vacuum inside a flask as it is to talk of owning the cocoa inside a cup. In both cases, labor was needed to generate the “thing” owned, and there is a reasonable moral expectation of non-interference with respect to it. (I would be destroying your property if I beamed a gas into your vacuum flask.)

What does this have to do with scepticism of strong property rights independent of positive law? First, it becomes very difficult to draw a principled line between ownables and non-ownables. Second, once we recognize that we can own things that don’t exist, such as vacua, it becomes difficult to distinguish “things” we have created and own from other kinds of outcomes of our activity. It then becomes plausible that the relevant right is one that should apply to outcomes of activity without much regard for whether that outcome is a thing that exists, a “thing” that doesn’t exist, or some other kind of outcome, such as a mountain’s being enchanted. There seems to be some kind of a right not to have the intended outcome of one’s virtuous activity destroyed without good reason. But how good the reason has to be will vary widely from case to case, so it is unlikely that this kind of a right will ground a strong view of property rights independent of positive law.

But the difficult is not the impossible. For it may be that although it would be difficult to make the needed distinctions, these distinctions could be grounded in highly detailed facts encoded in our natures.

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