Abstract
The subject of this article is the Rawlsian right to personal property. Adequate discussion of this right has long been absent from the literature, and the recent rise in interest in other areas of Rawlsian thought on property makes the issue particularly pertinent. The right to personal property as proposed by orthodox Rawlsians – in this article, the position is represented by Rawls himself – is best understood, I claim, either as a right to be able to privately own housing and personal items or as a right to actually own these things. I argue, however, that the resources of a Rawlsian theory cannot justify a basic right to property which is as extensive as this. Instead, what can be justified is a more limited set of rights, comparable with the rights we have over objects that we rent. Rawlsian justice, then, has a more radical implications in terms of basic property rights than has previously been thought.
Introduction
On an orthodox Rawlsian account of justice, just one basic right to property gets included in the set of basic liberties. 1 This is the right to personal property. Surprisingly, little has been written about this right in the critical literature to date, despite the recent resurgence in interest in Rawlsian views about property more broadly. 2
In this article, I take up the question of the right to personal property. I argue that if we understand the content of this right in the way proposed by orthodox Rawlsians – here, this position is represented by Rawls himself – then there is no justification for its inclusion among the basic liberties.
My claim is that the most plausible way to construe the right to personal property given the way the right is presented in Rawls’s work is one of two ways: either as a right to be eligible to privately own or as a right to actually privately own, housing and personal items such as furniture, clothes, items of everyday use and so on. I argue that even if we understand the term ‘private ownership’ as denoting a modest set of rights and powers excluding, for instance, rights to income, the resources of a Rawlsian theory cannot in fact justify the inclusion of either of these rights among the basic liberties. Instead, the most that can be justified is that citizens should have a basic right to have a much more limited set of rights over housing and personal items, a set of rights comparable with those that an individual might have over an item that they have rented. These rights are compatible with another party – in this article, I take this party to be the state – being the ultimate owner of these things.
The orthodox Rawlsian view about basic rights to property has, of course, recently been challenged from another quarter. Tomasi (2012) among others claims that the orthodox view is unjustified in excluding certain rights to property – for instance, the right to own productive property – from the set of basic liberties. 3 It is not part of the aim of this article (and, indeed, far beyond its scope) to engage with Tomasi-style arguments; instead, I assume as a starting point that the orthodox position can be defended from his criticisms. The conclusion of the article, then, should be understood as follows: if Tomasi-style arguments are wrong, then the most that can be justifiably included among the basic liberties is the more limited right mentioned above. 4
The article proceeds as follows. First, I discuss Rawls’s views on the right to personal property and show why it is best construed as either a right to privately own or a right to be eligible to privately own housing and personal items. Second, I consider some concerns relating to the use of the term ‘ownership’ in this article. I then propose a series of arguments a Rawlsian could make to justify the inclusion of a right to privately own housing and personal items among the basic liberties and show that these arguments fail. Finally, I conclude.
The right to personal property in Rawls
As one of the basic liberties to be constitutionally protected in the just society, Rawls includes a ‘right to hold and to have the exclusive use of personal property’ (2001: 114). Rawls affirms this right in very similar wording across three major works, A Theory of Justice, Political Liberalism and Justice as Fairness.
5
Rawls’s claims about the content of this right can be set out in just a few lines: that what falls under the right ‘would seem to include … dwelling and private grounds’ (2001: 114, note 36)
6
, that the right is distinct from a right to privately own ‘natural resources and means of production generally’ (2001: 114), which are not included among the basic rights and liberties, that the right excludes ‘certain … rights of bequest’ (2005: 298). Here, I argue that the most plausible way to construe the right is as either:
P a right to be eligible to privately own housing and personal items Or
Q a right to actually privately own housing and personal items
Let me explain these rights, starting with what they have in common. First, I take it that two major categories of thing fall under Rawls’s right to personal property. These are (a) housing (where this term is used to include Rawls’s ‘private grounds’) and (b) those things which, when owned, we call ‘personal possessions’ (clothes, furniture, household items and so on). I will call these as ‘personal items’. This claim about what falls under the right can be taken to be fairly uncontroversial, being both in line with the views of central commentators such as Freeman (2007: 49) and consistent with a common sense understanding of what ought to fall under a right to personal property, given that ‘means of production generally’ are excluded here.
Second, I take Rawls’s right to personal property to be a right to privately own [hence just ‘own’] certain items. It might be claimed that Rawls’s statement of the right to personal property is too ambiguous for us to be confident in construing it in this way. The first thing to say here is that by understanding Rawls in this way I am by no means offering an eccentric interpretation of the text – this is a standard way of construing the right to personal property. 7 Secondly, however, I do not think that the term is too ambiguous for us to be confident in construing it as a right to private ownership of the relevant items. Rawls’s statement of this right, to recall, is that there is a ‘right to hold and to have the exclusive use of personal property’. In his important essay on ownership, Frank Snare (1972: 200) talks about ‘the special relationship which may hold between a person and a physical object called “owning” in virtue of which the latter may be called “personal property” or “a possession”’ (emphasis added). Snare is pointing out that as we usually use these terms, the phrase ‘personal property’ implies an ownership relation. If Rawls talks about a right to personal property, it, therefore, seems reasonable to take him to be making a claim about ownership.
How should we understand how the term ownership is to be cashed out? There are various well-known characterizations of ownership, here I rely on one by Honoré (1987). On Honoré’s analysis, the standard incidents of ownership are: 8 the right to possess (the right to have exclusive physical control over something); the right to use (the right to use the thing at one’s discretion); the right to manage (the right to decide who else uses the owned thing, and how); the right to the income (the right to the income that can be generated from the item); the right to the capital (the power to alienate the thing, and the liberty to consume or destroy it); the right to security (immunity against expropriation); the incident of transmissibility (the power to transmit the item to others after one’s death); the absence of term (the lack of term on the owner’s rights in the thing); liability to execution (the liability that certain judgements against the owner will fall on the owned thing) and residuary character (the right that once the rights others may have in the owned thing have lapsed, those rights return to the owner). 9
If we are going to attribute to Rawls a right to privately own certain items, however, private ownership must be understood in a more limited sense than this. This is because Rawls explicitly sets certain limits on his basic right to property. Firstly, he excludes the right to own ‘means of production generally’ (2001: 114) from the basic rights and liberties and this has implications for the right to personal property: Citizens do not have a right to use housing and personal items as means of production. This constraint is best understood as limiting the rights and powers of the private owner in the following way: as limiting their right to use the item in certain ways (for commercial purposes) and as excluding their right to income. 10 Secondly, Rawls claims that the right to personal property excludes ‘certain … rights of bequest’ (2005: 298); consequently, it only includes a limited incident of transmissibility. 11 My claim, then, is that the most plausible way to construe Rawls’s right to personal property is as a right to privately own housing and personal items, where the term ‘privately own’ is understood as referring to Honoré’s standard incidents, minus income rights and with the stated limits set on transmissibility and use. 12
Finally, let me explain the way in which P and Q, the two ways of construing Rawls’s right to personal property, differ. Assertions of basic rights to property are often ambiguous. Take the phrase ‘a right to own X’. This can be construed either as a right to be eligible to own X or as a right to actually own X. 13 On the first reading, my having a right to own X is not inconsistent with my not, in fact, owning X. All that the right furnishes me with is the legal eligibility to own X. On the second reading, it is inconsistent – a right to actually own X requires me to be furnished with X or with the resources to obtain X. When it comes to Rawls, there is little in the text to help us construe the right one way or another. I therefore consider in what follows the plausibility of both P and Q.
Ownership
Before moving on to consider plausible grounds for P and Q on a Rawlsian account of justice, I should say something briefly about the complicated subject of ownership.
The question of how ownership is to be defined is a vexed one. Some have argued that there is no ‘core’ to the idea of ownership at all, and consequently the attempt to define it is futile. 14 I do not discuss this view here, except to point out that it is now thought to be unpersuasive, failing to, in Hugh Breakey’s words, ‘explain the clear meaning and use of the term [ownership] in theory and practice’ (2011: 241). Instead, I consider concerns that might be raised as a consequence of the existence of competing accounts of what the core notion of ownership involves.
A central concern this raises is whether it is acceptable to understand the term ownership as it features in P and Q as I have understood it – in other words, roughly in line with Honoré’s characterization. In my view, Honoré’s analysis provides us with the most satisfactory account of ownership given that we are concerned with the ownership of two categories of item: housing and personal items. I should point out, however, that to a certain extent, it does not matter for the arguments of this article which understanding of ownership we choose.
Consider, for instance, the more modest definition of ownership offered by Breakey. On this view, ownership involves three main entitlements: The duty of non-owners to exclude themselves from the resource; The owners’ open-ended capacities to use the resource; Powers to alienate one’s ownership of the resource.
If ownership were understood in this way, I could still coherently make the arguments of this article. These will be that the resources of a Rawlsian account of justice cannot ground a right to own housing and personal items; it can ground at most a right to a more limited set of property rights comparable to those that someone who rents an item would have over that item. The argument is coherent because we can make a clear distinction between renting and owning on Breakey’s definition – the renter of some items lacks the power to alienate their rented items – the power to permanently transfer that item to others. However, I have ultimately adopted Honoré’s account because it offers a richer characterization of ownership. Consider, for instance, other aspects of the right to capital which are not mentioned in Breakey’s definition – the liberty to consume and destroy the item in question.
A more worrying account of ownership for my arguments claims that the term ownership can sensibly be used when only rental rights are present. This might be thought to be an implication of an account of ownership as offered by JW Harris, who wants to say that an individual (or group) has an ‘ownership interest’ in something in cases where they have privileges to use and powers to control that thing which are ‘open-ended – that is, they cannot be concretely listed’ (1996: 5). 15 The concern here is not that we can’t distinguish between rental and ownership rights in terms of stronger and weaker ownership interests (in Harris’s terminology), but that we do not have the grounds to attribute the stronger ownership interest to Rawls rather than the weaker. In other words, if we can coherently refer to rental rights with the term ownership, then how do we know what Rawls means by ownership?
We cannot, now, know Rawls’s intentions with respect to this matter. What we can do, however, is identify the most plausible way of understanding the term ownership when that term is used in relation to housing and personal items, the way, in line with Breakey’s comments, that best accords with the ‘meaning and use of the term in theory and practice’ (2011: 241). Here, I think, the Harris account offers the less plausible option. When we consider the ownership of housing and personal items, the statement ‘I own X’ is normally used to convey the stronger ownership interest rather than the weaker; indeed, ordinarily, it would be odd to say ‘I own this flat’ if the flat is, in fact, rented; the same goes for a television or a car. If we stick to the more common sense understanding of the terms Rawls uses, then, we end up being able to claim that his right to personal property is a right that involves private ownership in the desired sense.
The grounds of the right to personal property
We are now in a position to ask what grounds a Rawlsian theory might have for including P or Q among the basic liberties. In order to answer this question, something must be said about the basic liberties on a Rawlsian picture. Since these things have been said many times before, I will try to be brief.
The basic liberties are constitutional essentials; there is a strong presumption against curtailing them for increases in other goods, although there is not an absolute prohibition. They are to be accorded such status on the basis of their relation to the two moral powers, two fundamental aspects of citizenship.
16
These are: Capacity for a Sense of Justice: ‘the capacity to understand, to apply, and to act from (not merely in accordance with) the principles of political justice that specify the fair terms of social cooperation’. (Rawls, 2001: 18–19) Capacity for a Conception of the Good: ‘the capacity to have, to revise and rationally to pursue a conception of the good’ (Rawls, 2001: 19).
In Rawls’s own discussion, the right to personal property is not included in the list of fundamental liberties, so we assume it is a supporting liberty. However, Rawls also claims that the right provides: a sufficient material basis for personal independence and a sense of self-respect, both of which are essential for the adequate development and exercise of the moral powers. (2001: 114) a. P or Q is a supporting basic liberty; b. P or Q is required for personal independence and self-respect.
In addition to this, we should also consider the broader claim that:
c. P or Q is required for the development and exercise of one or other of the two moral powers.
Housing
Above I distinguished two categories of item that fall under the right to personal property. In what follows, I take each of these categories in turn, and present what I take to the most plausible arguments for why there should be a basic right to own, or to be eligible to own, these things. This way of proceeding opens me up to the charge that there are plausible Rawlsian arguments for the ownership of these things which have not been examined here. I cannot, of course, claim to have exhausted all possible arguments. However, I do expect here to have discussed the most significant and plausible.
In this section, I consider arguments for the claim that citizens of a Rawlsian just society should have either a basic right to be eligible to own housing or a basic right to actually own housing. I consider the following arguments: owning or being eligible to own housing is one of the social bases of self-respect; owning or being eligible to own housing is required for identity and agency, a condition of the development and exercise of the two moral powers; owning or being eligible to own housing is required for privacy, which is taken to be a condition of self-respect and personal independence and also to be required to support some of the other basic liberties.
I will subject these arguments to the following test. I will consider a scenario in which citizens have neither rights to own, nor to be eligible to own, housing. If this alternative can provide adequate grounds for independence, self-respect and so on, then it can be shown that the right to own or be eligible to own housing should not be included among the basic rights and liberties. The scenario which I consider here is what I will call the ‘state-ownership’ scenario. In this scenario, all citizens would be tenants of homes that are state owned, in a way comparable to the way that some individuals in the United Kingdom today inhabit council housing owned by the state. I argue that in this scenario, citizens are furnished with self-respect, independence, etc. It should be noted, however, that my intention here is not to argue for state ownership of housing. I am simply using it as a contrast case with which to assess the arguments below.
What rights and powers would tenants in the state-ownership scenario have over their tenancies? 17 Here, I will consider that they have the following, quite limited, set of rights and powers: individuals in this scenario have the right to possess – the right to have exclusive physical control over their living space; the right to use – they have the right to use the space at their discretion; they have a limited right to manage the space in question – they get to admit or deny others admission to the space, they get to decide what visitors can or cannot do once in the space; they also have a right to security of sorts – they cannot be ejected from the property, except on certain grounds, within the period of the tenancy. These rights and powers are significantly less extensive than those that a private owner would have – tenants lack, in particular, the right to the capital – the power to alienate the item and the liberty to consume or destroy it (we should note here that they also lack the power to alter the space in any permanent way). They also lack the absence of term – I am assuming here that tenancies are limited to just a few years. Finally, we should note an important point of difference between tenants and private owners: tenants are, where owners are not, in a relationship with a landlord – in this case, the owner of the housing, the state.
Self-respect arguments
First, I consider arguments linking self-respect and the ownership of housing. How does the Rawlsian picture understand the notion of self-respect? The central statement of this is, again, from Rawls himself. Rawls defines self-respect as involving, first, ‘a person’s sense of his own value, his secure conviction that his conception of the good, his plan of life, is worth carrying out’, and second, ‘a confidence in one’s ability, so far as it is within one’s power, to fulfil one’s intentions’ (1999: 386). Rawls’s central notion of self-respect is therefore a rather narrow one, focusing on an individual’s sense of the worth of his or her important goals, plans and way of life. 18 Self-respect is this sense is significant in virtue of its close relation to the two moral powers. In particular, the capacity for a conception of the good is not considered by Rawls to be achievable without self-respect because, he claims, ‘[w]hen we feel that our plans are of little value, we cannot pursue them with pleasure or take delight in their execution’ (1999: 386). Without self-respect, for Rawls, ‘nothing may seem worth doing, or if some things have value for us, we lack the will to strive for them’ (1999: 386).
What, then, could be the connection between housing and self-respect? The claim must be that privately owning housing or being eligible to privately own housing is one of the social bases of self-respect. The Rawlsian scheme does not guarantee all citizens a sense of self-respect in the sense that it does not guarantee that they, in fact, possess this attitude (2001: 60); instead it aims to provide citizens with the social conditions ‘normally essential’ (2001: 59) for the possession of this attitude. I think that there are three plausible arguments that a Rawlsian could make to support the claim that owning or being eligible to own housing is one of the social bases of self-respect. I examine them in turn.
(1) Owning one’s home is normally essential for self-respect. It might be claimed that home ownership is required for self-respect, on the grounds that such ownership is associated with a certain (high) social status. Those who do not own their own home would fail to achieve this status in the eyes of others. Non-home owners may then feel that their particular way of life lacks some important element and be unable to fully endorse it. In this way, they would not have self-respect. Denying citizens the ability to own a home (and, it would seem, failing to ensure that they can actually make use of this ability – this looks to be an argument for actual ownership) is then to deny them self-respect. In the state-ownership scenario, citizens lack self-respect.
This argument is not very convincing. Non-home owners will feel that their particular way of life lacks an important element only if they are exposed to those whose lives contain that element. In the state-ownership society, citizens would not be exposed to other citizen home owners, since there would be none, and are therefore unlikely to feel that their particular way of life was, in this respect, being challenged in a troubling way. 19
(2) Not being an owner of the housing one lives in involves being treated in ways that typically undermine self-respect. If citizens of the just society are treated in certain ways, this may imply a lack of respect for them. This implied lack of respect may, in turn, undermine their self-respect. Again, in line with the Rawlsian understanding of self-respect, the treatment in question must convey a lack of respect for their ways of life. If citizens were all to live in state-owned property, would this state of affairs expose them to treatment conveying a lack of respect for their chosen way of life? One form of treatment it might be claimed this scenario exposes tenants to is the state, as landlord, subjecting them to checks to ensure that they were behaving appropriately in their homes. This kind of behaviour might be self-respect undermining for citizens because it would reflect back at them the judgement that they were not capable of inhabiting the property in the appropriate manner – that there was, therefore, something about their way of life in the day-to-day which did not inspire confidence. 20
I think this argument is also unpersuasive. Although the fact that the state, rather than the citizen, is the owner of the property and therefore ultimately responsible for its condition means that citizens can expect some inspections of their property, it is not clear that this would be self-respect undermining. After all, people who rent rather than own their own homes are not commonly subject to interference and regulation that is sufficiently severe as to undermine their self-respect. Furthermore, in the rental scenario, the extent to which the landlord can interfere with and regulate their tenants is, itself, subject to regulation. There is no reason why, in the state-ownership scenario, such regulation would not also exist (and be subject to democratic oversight by citizens), to ensure that the relationship between state and citizen remains respectful by preventing severe interference.
(3) Owning housing is required for privacy; privacy is normally essential for self-respect. I will deal with this argument under the heading of ‘privacy’ below.
Identity and agency arguments
It might be claimed that owning, or being eligible to own, housing is necessary for the development and exercise of the two moral powers in the following way: owning or being eligible to own housing is required for the proper development of identity and/or agency, and these things are necessary for the proper development and exercise of the two moral powers. Identity would seem to be required for the development and exercise of at least one of the moral powers, since it looks like a precondition of having a particular plan of life that is in some sense ‘one’s own’; agency looks like a requirement of the two moral powers because without it citizens will not have a sense of their own capacity to carry out their plans. 21 How, then, are identity and agency to be related to ownership? The most significant arguments of this sort come from what can broadly be called the ‘Hegelian’ tradition. Here I examine the three most plausible versions of a Hegelian argument for ownership. None of these accounts, however, provide support for a basic right to own housing.
The first argument comes from Margaret Jane Radin. Radin (1982) argues that there is a close connection between what I call ‘identity’ and what she calls ‘personhood’ and personal property. She states that ‘to achieve proper self-development – to be a person, an individual needs some control over resources in the external environment. The necessary assurances of control take the form of property rights’ (1982: 957). The reason for this is given that certain objects are ‘part of the way we constitute ourselves as continuing entities in the world’ (1982: 959). Later, she suggests that certain objects are ‘very close to a person’s center and sanity’ (1982: 977). The precise content of Radin’s account is difficult to pin down, but I take her to mean something like this: property rights over particular objects are required because an individual needs to maintain control over these objects in order to sustain his or her identity over time. Homes, for Radin, are a type of object that contributes to personhood. One might have thought that Radin (1984: 994) would therefore argue that all citizens should be owners of their homes, but in fact it is her position that renting is sufficient for personhood, so long as tenants have the option of permanent tenure of their rented properties. Consequently, the implication of her arguments, as she interprets them, is not of much use to the Rawlsian attempting to justify a right to own housing as the term own is being understood here. However, Radin’s arguments do imply that citizens in the state-ownership scenario lack the conditions for personhood – consequently, we should consider her argument here.
It is not clear how persuasive Radin’s argument is for permanent tenure is – this assessment of Radin’s view is, indeed, critically quite well-rehearsed. John Christman (1996: 649), for example, points out that most people move house a number of times over their lifetime without an apparent change or loss of identity. 22 If homes were indeed ‘bound up’ (Radin, 1982: 959) with personhood wouldn’t these frequent changes be experienced as more problematic? Radin claims her view has a mainly intuitive basis, but here the intuition does not seem to be particularly persuasive. Christman (1996: 649) points out that there may also be a normative position here: Radin may be arguing that even if we do not currently have our identities bound up with homes in this way, we should. This view, however, is even more problematic from a Rawlsian perspective, since it is based on a particular view of human flourishing and this seems inconsistent with liberal neutrality. 23
An argument along similar lines to Radin comes from Meir Dan-Cohen. Dan-Cohen claims that a relationship of ‘constitutive ownership’ (2001: 426) can exist between a person and an object; this relationship exists when the ‘boundaries of the self’ (2001: 426) expand to include the object in question within them. The object in question then becomes a constituent of the self. Such a relationship, Dan-Cohen claims, can form a basis for claiming that the individual in question should come to have ownership rights in the object (2001: 404). Dan-Cohen does not fully spell out the implications of his account, but we might think that he could make a similar claim to Radin’s – that individuals’ interest in having a continuing identity over time grounds a claim to have long-term rights over the objects that are partially constitutive of the self. In response to this line of argument I think we can reiterate Christman’s point – that it is not clear that it is extremely damaging to one’s identity to cease to have relationships with certain physical things, in this case our housing.
There is a second way that the normative implications of Dan-Cohen’s account can be construed. Interferences with objects with which individuals have a constitutive ownership relation with are to be considered, on Dan-Cohen’s account, as akin to incursions of bodily integrity – for instance, Dan-Cohen draws a parallel between harmless trespassing and a case of taking a blood sample painlessly from a comatose patient without their consent. This is not an identity or agency argument, but one which claims ownership is sometimes necessary to sustain the integrity of the person. Since, however, the physical and psychological integrity of the person is protected as a basic liberty on Rawls’s account, we should consider this claim. In order to prevent interferences with objects that individuals have constitutive relationships with (interferences such as the loss of control of the item which comes at the end of a tenancy), the claim is that individuals should be able to have ownership rights over those objects. Again, however, the parallel Dan-Cohen draws between incursions into property and incursions into bodily integrity just do not seem to chime with our considered judgement on the matter. If a child retrieves their ball from a neighbouring garden without asking permission (assume that the neighbourhood is unfriendly, so child and neighbour are unacquainted), it is difficult to see this as a troubling event in the way that Dan-Cohen’s account would have us think.
The third Hegelian argument comes from Jeremy Waldron. For Waldron (1988), owning personal property is taken to be essential for both identity and agency. What matters for the development of identity and agency, on Waldron’s account, is the physical modification of objects. 24 As a consequence of working on objects in a way that changes their form or appearance, we develop the ability to commit to particular plans and projects, contributing to our sense of identity, and to carry those plans and projects through to completion, required for effective agency. The argument that Waldron gives for this is that physically altering material objects imposes ‘a stronger discipline on our willing’ by ‘registering the effects of willing at one point in time and forcing an individual’s willing to become consistent and stable over a period’ (1988: 372–373). Ownership might come into the picture in two ways here. For Waldron, it is that the beneficial effects of this process will not be fully realized unless the individual continues to be reminded of the effects of their actions by being assured permanent possession of the relevant objects, which requires ownership. In addition, in the state ownership of housing scenario, the interest the state had in maintaining its property would prevent tenants from having free reign to modify their homes as they liked; consequently, they would not be able to properly develop identity and agency.
This attempt to forge a close relationship between the ownership of housing and identity and agency also seems unconvincing. The central dispute with Waldron’s account is surely the claim that we cannot develop identity and agency without the physical modification of our living spaces. Since no empirical evidence is offered in support of this claim, we must suppose the assertion, like Radin’s, to be an intuitive one. 25 If we understand ‘physical modification’ in the strong sense implied by Waldron’s account – to mean literally changing the form or appearance of some object oneself – then it looks like this criterion is too strong. Many people do not choose to paint their living spaces themselves, or repair their own wiring or plumbing, or build their own garden fence. If this kind of behaviour is required for agency and identity Waldron’s account implausibly implies that many of us are currently without these qualities. If we weaken the account so physical modification means simply having an impact on the appearance of one’s home or the arrangement of items (for example, the furniture) in it, then it does not matter for my purposes here whether this is required for identity and agency, because tenants do have discretion over the arrangement of their living spaces, although admittedly not as much as an owner. 26
There is also a broader point to be made about Waldron’s central claim. This is that although the idea that physically modifying objects contributes to agency and identity is to some extent persuasive, it is not clear why other activities could not equally contribute to this. If I commit to a project that is difficult to get out of – say, I agree to visit an elderly person at home and she comes to rely on my visit – this will force a ‘discipline’ on my will in the way Waldron wants, and, if I do an effective job, the results of my intentions will be obvious – there will be an improvement in the quality of this person’s life and this can be communicated to me. It is not quite clear to me what the salient difference is between this case in terms of the development of agency and identity, and that of building a piece of furniture from scratch, which is Waldron’s paradigm case.
Although this survey of Hegelian accounts of ownership has been relatively brief, I think it is enough to suggest that there are serious problems with them. A basic right to own housing cannot, therefore, be justified as part of a Rawlsian account of justice on these grounds.
Privacy arguments
I now turn examine the claim that the ownership of housing is required for privacy. For the purposes of this argument, I am going to define privacy in a particular way, namely as having a physical space over which one has control, in particular, over the presence of others in the space. Munzer (1990: 90) calls this having the ‘power to exclude’ with respect to some space. It is, in this sense, that it can be argued that privacy is required for self-respect, for personal independence, and to guarantee the fundamental basic liberties, in particular freedom of expression, conscience and association. Consider the following arguments:
Self-respect
Privacy looks to be tied to self-respect because it is required to perform certain unavoidable or significant acts. Munzer here lists acts that are ‘intimate, shameful, embarrassing … silly’ (1990: 93). Having to perform these acts in public would be humiliating and would undermine self-respect. Here, I think that our concerns relate to the idea of human dignity. Having to perform certain acts in public undermines dignity, and if we feel that we are not living in a way which is consonant with basic dignity, then it seems difficult to imagine that we will have self-respect understood as a sense of the worth of our way of life. 27
Personal independence
Here, I understand personal independence as physical independence, by which is meant something like the physical ability to withdraw from others. The relationship between this form of independence and the two moral powers might be thought to be as follows: the ability to be physically alone is an essential requirement for the kind of reflection required to develop plans and projects and a sense of self. It seems that privacy, in the sense of the power to exclude, is needed to ensure physical independence.
Guaranteeing the basic liberties
Finally, it can be argued that without privacy, certain of the basic liberties cannot be guaranteed. Take freedom of expression, for example. It will be difficult to express and discuss thoughts that might be viewed by the majority as controversial or subversive, if there is no way of ensuring that others are excluded.
It has been suggested that it is these kind of arguments to which Rawls himself can best appeal when grounding his right to hold personal property. Robert S Taylor, for example, seems to be combining the two arguments above when he suggests that, for Rawls: Freedom of the person (including psychological and bodily integrity), as well as the right to personal property and immunity from arbitrary arrest and seizure, are necessary to create a stable and safe personal space for the purposes of reflection and communication, without which rationality [the capacity for a conception of the good] would be compromised if not crippled. (2003: 261).
Consider a society in which the state is the owner of all housing, and all citizens either rent their homes from the state, or, if they are not wealthy enough to do so, are assigned somewhere to live without the need for payment. This is the state-ownership scenario I described above. It is not clear how, in this scenario, individuals are denied privacy. State ownership of all housing is perfectly consistent with the tenants having the required power to exclude, in the same way that a tenant of rental property has the power to exclude. Privacy, then, does not require ownership.
This completes my survey of the arguments for the ownership of housing. From this survey, I conclude that a Rawlsian account cannot justify a basic right to own housing.
Personal items
I have argued that Rawlsian theory does not have the resources to ground a basic right to own housing. I now argue that Rawlsian theory does not have the resources to ground a basic right to own what I have called ‘personal items’.
Again, the relevant alternative is taken to be state ownership of all personal items. This is a less familiar alternative than state ownership of housing; nevertheless, it can plausibly be conceived of. We would have to assume that all personal effects, books, furniture and so on were leased or rented (for longer or shorter periods) to individuals or cohabiting groups by the state. Those who rented these items would have analogous rights and powers to tenants in the state-ownership scenario. 28 Again, I should point out that I am not proposing state ownership of personal items as an alternative to individual ownership, I am simply using the scenario as a tool with which to evaluate the Rawlsian account.
The discussion of personal items will be somewhat briefer than my discussion of housing. At least some of the arguments discussed above in relation to housing – for example, those understood as relating to privacy as the power to exclude – do not apply in the case of personal items. Some of the arguments do, however, clearly have application to personal items, along with one argument that has not already been discussed, namely that citizens should own personal items because in a state-ownership scenario the state will end up in possession of too much information about citizens.
Let me first consider those arguments for housing that also apply to personal items. First, self-respect arguments. If we consider the claim that owning personal items is required for self-respect because a certain status attaches to them, we can see that the same reply can be applied here as to housing – if no citizen owns personal items, then these things will not be a basis for differential status judgements. In terms of the purported connection between ownership and respectful treatment, again, it seems that the rental of personal items from the state could be governed by regulations that would ensure respectful treatment, much like the rental of housing.
Second, Hegelian arguments. Radin’s claim (and, interpreted one way, Dan-Cohen’s) that certain items are essential to the continuation of identity might seem more plausible when it comes to personal items than housing. People can be very closely, in Radin’s terms bound up with certain personal items – Radin herself (1982: 959) uses the example of a wedding ring. Perhaps, then, people ought to have ownership of these things. However, there are two problems with this claim.
Firstly, on Radin’s account, the items which it will be important for individuals to own will be a relatively small subset of what we normally consider to be an individual’s personal items. 29 They are things which are of great personal significance, like, for example, a wedding ring. Even if it were to be conceded that these things must be privately owned, the majority of an individual’s personal items could still be owned by the state. This suggests that Radin’s argument is not of much use to the Rawlsian here. I do not, however, think that it ought to be conceded that these things must be privately owned. This bring us to the second problem. In the section above, I discussed John Christman’s arguments against Radin’s account of the relationship between identity and housing. Christman argues that people frequently move home without apparent severe change or loss of identity; consequently, we can doubt that our identities are indeed bound up with our housing in the way that Radin suggests. Similarly, although individuals may feel a sense of (perhaps deep) sadness at the loss of (cherished) personal items, we can doubt that such losses are in fact destructive of identity. This suggests that we should be doubtful that these items – like housing – really are bound up with identity in the way Radin wants to argue.
When it comes to Waldron’s account and the alternative way of taking Dan-Cohen’s arguments, I think it is sufficient to simply refer the reader back to my previous discussion of these authors. The objections raised there against the account (in particular, with respect to Waldron, the final concern that the development of agency and identity need not involve the modification of physical objects at all) apply in the case of personal items without the need for further discussion.
Finally, I consider the objection that in the state-ownership scenario, the state would end up in possession of too much information about citizens’ preferences. 30 The thought here is that the state would require this information in order to issue individuals with the things they require either for day-to-day life or to carry out their conception of the good. I have in previous sections discussed privacy as being understood as the ‘power to exclude’; however, here the concern is with privacy in a different sense – the idea that certain facts about citizens are not to be widely known or shared. There is, presumably, a presumption that privacy in this sense is protected as a basic liberty on the Rawlsian picture. However, I think the objection raised need not concern my argument too much, since the state ownership of personal items scheme could, in practice, be implemented in a way so as to avoid these concerns. Consider, for example, the fact that in the UK healthcare is provided by the state through the NHS. In this case, the state is, in a sense, in possession of a large amount of highly confidential information regarding its citizens. However, the way that the system is administered means that this need not be troubling for those citizens. Similar considerations, taking privacy into account, could inform whatever system were to administer personal items to citizens.
I therefore conclude that a Rawlsian account cannot justify a basic right to own either housing or personal items.
The pursuit of conceptions of the good
I now turn to an objection to the way I have proceeded so far. 31 This objection is that owning or being eligible to own housing and personal items is necessary for individuals to pursue their concrete conceptions of the good. Although this seems like a fruitful route for a Rawlsian account to take, we cannot in fact justify rights to privately own housing and personal items on these grounds. Here, I will briefly set out and reject the most plausible arguments along these lines.
First, it might be argued that ownership rights over certain personal objects are required to pursue almost any conception of the good. 32 If I wish to play tennis in my spare time, for example, surely I will need to own certain things – tennis shoes, a racquet and so on. If we care about citizens’ ability to pursue conceptions of the good, then, we will want to protect at least the ability to own a range of items. The response here, however, is that temporary, secure exclusive use rights over these things (which ex hypothesi citizens possess in the state-ownership scenario) would surely be sufficient for the pursuit of most conceptions of the good – ownership rights are not necessary.
A second argument might be that providing citizens with at least the eligibility to own housing and personal items is important, because some citizens will have conceptions of the good that centrally involve ownership rights. If my conception of the good involves owning my own home, then I must be eligible to have ownership rights over housing if I am to realize this conception of the good. If I can’t have ownership rights over housing, this conception of the good is unavailable to me. Here, the response is that a Rawlsian just society does not have to ensure that citizens can realise their conceptions of the good whatever those conceptions of the good are. Just because some citizens hold conceptions of the good that involve ownership of certain things does not ground a basic right to be eligible to own those things.
A third argument is that a right to be eligible to own housing and personal items is required because doing so ensures that the widest range of conceptions of the good is available for citizens. This argument makes two claims. The first asserts that Rawlsians are committed, as a consequence of their commitment to the two moral powers, to ensuring the widest range of conceptions of the good is available to citizens. The second asserts that a wider range of conceptions of the good can be realized in a society where individuals have or are eligible to have ownership rights over homes, personal items and so on than in one that does not. The second claim is very difficult to assess without much more extensive discussion, so here I consider the plausibility of the first claim. Rawlsians are committed, to the degree that would form a basis for basic liberties, to citizens having ‘the capacity to have, to revise, and to rationally pursue a conception of the good’ (2001: 19). From this, it seems to me, we cannot draw the conclusion that Rawlsians are committed to the availability of the widest range of conceptions of the good. It might be conceded that all other things being equal Rawlsians should endorse a range of conceptions of the good that was wider rather than narrower, but this concession gives the claim little purchase. What if there were a trade-off to be made, say, between more conceptions of the good being available, and more material equality? It is not clear to me that on Rawls’s theory, it is taken that the former should automatically prevail. The burden of proof here lies with the objector to make that case.
It, therefore, seems plausible to conclude that Rawls’s account does not have any further resources to ground a right to be eligible to own or to actually own housing and personal items.
Objections
Finally, let me deal with two objections. Firstly, why do I contrast a right to own housing and personal items with a state-ownership scenario, which assumes that all citizens have secure access to housing and personal items, and not with the current situation in many contemporary welfare states in which a great number of people lack secure access to these things? If we consider the latter state of affairs as the relevant alternative, it seems clear that we should include a right to own housing and personal items (and, indeed, a right to actually own them, not just a right to be eligible to own them) among the basic liberties. This is because lacking secure access to, for instance, housing means lacking among other things the social bases of self-respect. 33
I do not think this first objection undermines the arguments I have made. My central claim throughout this article has been that protecting self-respect, independence and so on does not require individuals to own or be eligible to own housing and personal items. It is not at odds with the success of this argument to accept that many individuals in contemporary welfare states lack, for instance, the conditions normally essential for self-respect. This is because all that I want to say is that in order to furnish them with these conditions, a Rawlsian society would not need to ensure that these individuals owned or were eligible to own housing and personal items; it could simply provide them with state-owned housing and personal items. Of course, if making citizens owners were the only relevant alternative to leaving them without secure access to housing and personal items, then of course we would choose to make them owners; however, I have been trying to claim that it is not the only relevant alternative. This claim holds, even if citizens of contemporary welfare states do not presently have access to the other alternatives.
Secondly, to what extent should the conclusions of the arguments I have set out here be considered troubling to Rawlsians? It might be claimed that Rawlsians could costlessly grant my conclusion that there is no basic right to actually own and no basic right to be eligible to own housing and personal items. 34 This depends what ‘costless’ is taken to mean here. I have argued that (orthodox) Rawlsians cannot establish the basic right to property they want to – accepting my conclusion is therefore, in some relevant sense, costly for them. It is true that my claims to do not have quite the dramatic implications of, say, Tomasi’s critique. 35 However, they do have significant implications for how we think about Rawlsian justice: the fact that a Rawlsian scheme cannot justify the inclusion of a right to own or a right to be eligible to own housing and personal items means that it offers a much more radical account, when it comes to property, than has previously been thought.
Basic property rights
The focus of this article has been, predominantly, negative; I have made a claim about what Rawlsians cannot include among the basic liberties. However, the discussion here would seem to have implications for what kind of property rights should be included among those liberties. Let me briefly sketch out the implications of this article for a positive discussion about Rawlsian basic rights to property. I should note that I advance these as plausible, rather than conclusive, claims, since a full defence of them is not possible here.
Firstly, it looks as though Rawlsians should include among the set of basic rights and liberties a right to actually have certain property rights – the rental or tenancy rights set out in section ‘Housing’ – over housing. This is because citizens’ interest in having privacy, which, I have suggested, has clear connections to the protection of self-respect, personal independence and to guaranteeing the supporting basic liberties, requires the protection of something very close to this set of rights. The right in question is a right to actually have these rental rights, rather than simply a right to be eligible to have them, because privacy is secured by actually having these rights over some living space not by having the ability to have such rights.
Secondly, it looks as though Rawlsians should include among the set of basic rights and liberties a right to be eligible to have property rights over a range of personal items. Again, the property rights in question are the rental rights set out in section ‘Housing’ or rights very similar to these. This is because, as discussed in section ‘The pursuit of conceptions of the good’, being eligible to have secure exclusive use rights over a range of items looks like a prerequisite for the pursuit of very wide range of conceptions of the good. It does not, however, look like we can conclude from the discussion here that citizens should actually have these rights, since the Rawlsian scheme does not require that individuals are actually in possession of those things which they require to pursue their determinate conception of the good. 36
Conclusion
The upshot of this discussion has been to show, I hope, that Rawlsians cannot justify the inclusion of a right to privately own, or to be eligible to privately own, housing and personal items among the basic liberties. The development and exercise of the two moral powers can be secured by providing citizens with more limited rights over these things, rights which are compatible with another party – in this article, I have taken this party to be the state – being the owner. In the penultimate section of the article, I also suggested that the arguments here might lead us to conclude that what should be included among the basic liberties in place of the right to own or be eligible to own housing and personal items are the following two rights: the right to actually rent housing and to be eligible to rent personal items. Although this conclusion is a plausible one, it has not been fully established by the arguments here. In particular, it must still be shown that such rights would be necessary as well as sufficient for the development and exercise of the two moral powers. This is a task for another article.
As a final note, let me mention one wider point which the discussion here raises. I started this article by noting how little has been written about the Rawlsian right to personal property in the critical literature to date. This gap is something this article has aimed to fill. However, the lack of explication and defence of basic rights to property is also a feature of the work of other liberal egalitarian thinkers. Take, for instance, Liam Murphy and Thomas Nagel who, in one of the fullest explorations of what might be called the liberal egalitarian view on property, state that they are committed to a ‘basic Hegelian right to hold personal property’ (2002: 45), but fail to spell out in any detail what this right consists in, or what can be said in its favour. The discussion here should, I hope, motivate other liberal egalitarians to give a clearer statement of the content and grounds of their proposed basic rights to property.