Why Metaphysics Matters: The Case of Property Law

Law and Philosophy https://doi.org/10.1007/s10982-024-09495-3  The Author(s) 2024 BEN OHAVI WHY METAPHYSICS MATTERS: THE CASE OF PROPERTY LAW (Accepted 21 February 2024) ABSTRACT. Are property rights absolute? This paper attempts to reframe this question by drawing on insights from the field of social ontology. My main claim is that, even if we accept the most extreme view of the absoluteness of property rights, there are some non-normative conceptual limitations to these rights. The conceptual limitations are based on two claims about the nature of property rights and their subject matter, namely objects in the world: (1) property law regulates relations between persons through the use of objects, and not relations between persons and objects; (2) even when owned, objects retain some of their ‘independent’, unowned, existence. Taken together, these claims confine property law to the institutional meaning that is given to objects, which is distinct from their social and natural meanings. Since property law defines objects in a certain way, it makes space for other social considerations but without the need to qualify property rights. I. INTRODUCTION Scholars have long debated the question of whether ownership rights are absolute – that is, whether, prima facie, owners are free to do what they want with their property – or, conversely, such rights are inherently qualified and limited by other social values. This issue has important implications for the legitimacy of state actions and how the law accommodates non-owners’ interests. In this paper, I attempt to provide a new perspective on the question of the degree to which ownership (and property rights in general) are absolute, by drawing on insights from the field of social ontology. My main claim is that, even if we accept the most extreme view of the absoluteness of property rights, there are some conceptual, non-normative limitations to these rights. BEN OHAVI The classic example of an absolutist view is the so-called Blackstonian view of property rights, according to which owners, have a ‘despotic dominion’ over their property.1 But, even for absolutists, ownership and property rights are limited by property-independent restrictions – that is, limitations posed on owners and non-owners alike. For example, the fact that I am not permitted to stab someone with my knife is not a property-limitation rule, for the prohibition on stabbing people applies to everyone, regardless of whether the individual owns the tool used for the stabbing or not.2 This kind of property-independent limitation does not seem to pose a challenge to absolutists because, even prima facie, this kind of act is not included in the concept of ownership. Here, I seek to show that there is another, distinct, kind of property-independent limitation, that is non-normative in nature. Most of the examples of property-independent rules are normative in the sense that they derive from normative considerations such as the right to life, the moral status of animals, or the public interest. Therefore, common examples of property-independent restrictions are the duty not to commit murder, torture animals, or surpass highway speed limits, and legal regulations dictating how buildings must be built in accordance with safety standards. In contrast, the uniqueness of the limitations I discuss in this paper lies in the fact that they do not stem from anyone’s rights or interests. For example, I argue that non-owners sometimes have the liberty to use certain owned artifacts located in the public sphere because, apart from being owned, those artifacts also form part of the city landscape. This is not because non-owners have a right to use the city (or any such idea)3 but, simply, because the owner does not control every aspect related to the object. On the one hand, the existence of this sort of property-independent limitation exemplifies from another angle the conceptual limitations of an absolutist view of ownership, since it shows that the concept of ownership and property rights is limited in certain non-normative ways. On the other hand, this kind of limitation also challenges some non-absolutist views of property rights because it shows that what, at first sight, seems to be a property-limitation rule is, in fact, a property-independent limitation. 1 2 3 For a discussion of Blackstone’s view, see, e.g., J. W. Harris, Property and Justice (OUP 1996): ch. 3. Harris, supra note 1. See infra note 31. WHY METAPHYSICS MATTERS The conceptual limitations that I will argue for are based on two claims I make here about the nature of property rights and the nature of their subject matter, namely objects in the world: (1) property law regulates relations between persons through the use of objects, and not relations between persons and objects (I will later call this ‘the interpersonal claim’); (2) some aspects of owned objects are not under the control of the owner. In other words, even when owned, objects retain some of their ‘independent’, unowned, existence (‘the independence claim’). As I argue in detail below, taken together, these claims confine property law to the institutional meaning that is given to objects, which is distinct from their social and natural (physical) meanings. Since property law defines and refers to objects in a certain way, it does not refer to everything related to these objects and, thus, makes space for other social considerations but without the need to qualify property rights. I start my inquiry from an atypical point of departure: the Talmudic principle of ‘one benefits and the other does not lose’. In Section II, I explore this notion, according to which, if you use my property without permission but do not subsequently damage it, you should not be required to recompense me for using it. While one line of interpretation explains this principle in moral terms, another provides a metaphysical account for why the user need not pay. The latter explanation is my main concern here, and it will form the unifying thread of my argument. The central claim of the metaphysical account of the ‘one benefits’ principle is that, insofar as you do not damage the object in question, you do not use my object but an object. I extract from this interpretation the two aforementioned claims – the independence of objects and the interpersonal character of property law. In Section III, I turn to contemporary property law theories, especially the ‘law of things’ view developed by Henry Smith and others. The aim of this section is twofold: to show that the two claims are reflected in current discussions in property law theory; and, based on discussions in social ontology, to introduce the dual nature of artifacts – that is, how they can be understood in terms of social facts vs. institutional facts. In Section IV, I point to some practical implications of making a distinction between social and institutional facts by examining cases involving unjust e (...truncated)