Summary: Property rights are often invoked in debates about housing, development, regulation, and economic inequality, yet the underlying concepts are rarely examined closely. In this conversation, legal scholar Eric Claeys explores what ownership and property rights actually are, how they differ from one another, and why they have occupied such a central place in legal and political thought. Drawing on examples ranging from mortgages and leases to eminent domain and the curious practice of “snow dibs” in Chicago, Claeys explains how property law structures relationships among people as much as relationships to things. Along the way, we discuss competing understandings of property, the role of natural rights in evaluating positive law, and the enduring question of whether property rights are a safeguard of individual freedom or a source of social tension.
Note: The following transcript has been edited for clarity and accuracy.
Garrett Brown: On today’s episode, I’m talking with Professor Eric Claeys about the foundational, but often misunderstood, concepts of ownership, private property, and property rights. Are property rights, as some claim, the “guardian of every other right”? Or, as others would have it, do they drive a wedge between the haves and the have-nots?
I’ve invited Eric Claeys to navigate us through the legal terrain. He is a professor of law at the Antonin Scalia Law School at George Mason University. In 2025, he published Natural Property Rights with Cambridge University Press. Professor Claeys received his AB from Princeton University and his JD from the University of Southern California Law School.
After law school, Professor Claeys clerked for the Honorable Melvin Brunetti, US Court of Appeals for the Ninth Circuit, and the Honorable William H. Rehnquist, Chief Justice of the United States. He has also taught at St. Louis University, the University of Chicago Law School, and Harvard Law School, and he is a member of the Princeton Politics Department’s James Madison Program in American Ideals and Institutions.
The publication of Professor Claeys’ book afforded us with an excellent opportunity to explore concepts of ownership, private property, and property rights, how they are used in legal contexts, and what his approach offers toward their philosophical coherence.
Eric Claeys, welcome to Humane Pursuits!
Eric Claeys: Thank you, Garrett. I’m delighted and honored that you asked me to come.
What Are Property Rights?
Brown: To begin, we should put forward good working definitions. What do property rights refer to in the broadest possible sense?
Claeys: Property rights refer to rights that people have in relation to other people and in relation to resources. So it’s common among law professors and philosophy professors to say that property rights create and recognize triangular relationships.
There’s some “thing,” and the “thing” is not a person or some attribute of a person, like a name, an identity, a reputation, or a limb, and instead, it’s a “thing” that could be owned by anybody. And then a property right is a right that one person has to the exclusive use of that “thing” in relation to other people in the same community.
Brown: Okay. And how does this relate to the concept of ownership?
Claeys: All ownership rights are property rights, Garrett, but not all property rights are ownership rights. Property rights are rights in relations to things, and they are strong enough that a person can claim them. They can bring torts for interference with those rights. They can get injunctive relief and protection for those rights. But not all property rights are rights establishing and protecting somebody’s exclusive managerial control over a resource. Those latter rights are rights of ownership.
So a lease is a property right, but it’s not a right of ownership. The landlord has the residual rights and the rights of ownership once the lease expires. The bank that holds a mortgage on somebody’s property has a property right. But the owner of the land who has the debt and is subject to the mortgage is more or less the owner. And if somebody has an easement on someone else’s land, the easement is a property right but not a right of ownership.
Ownership refers to an ideal. In the ideal, one person has all rights of control, use, and disposition over a resource and holds these all in perpetuity, and an owner can then slice and dice all the rights and ownership into smaller pieces, like a fee simple that’s been encumbered by a mortgage or a fee simple made servient to an easement.
Brown: With property, we often think about real estate or land, but that’s not the restriction in this case. We’re thinking broadly about the relationship of people to things. Can you talk a little bit about that and how we distinguish between the types of things and how it affects our views toward the concept of property rights?
Claeys: Sure, and it’s an excellent question. Property law covers rights that people have in relation to each other, in relation to what in answering an earlier question I called “things.” And there’s a term of art for what a “thing” is. Something’s a “thing” if it’s separable. A resource is separable if it could just as easily be owned by any one person as anybody else. It only has an accidental connection to any one person.
That definition applies to lots of different rights, not just rights of land. So books are things; computers are things. Books and computers are examples of tangible personal property. But you can have right to the exclusive use of spectrum. That would be a property right. And so FCC policy is about rights to use the spectrum for communication purposes. FCC policy disputes are fights about property rights. And then intellectual property rights, the rights to the exclusive use of some intellectual work or some idea, those are property rights too. Hard cases arise with, sad to say, slavery, where people try to use the institution of property to declare property like rights in people.
There’s a famous case [of John Moore, most famously recounted by Rebecca Skloot in her 2010 book The Immortal Life of Henrietta Lacks] in which a medical department associated with a public university took the spleen cells of a patient without letting the patient know why, and used the spleen cells to develop a line of cells that were helpful in cancer research.1 That’s a hard case because the spleen cells are not property while they’re in the person’s body. They’re probably property after they’ve been taken out.
And then one last difficult case is about the use of an identity of a performer or a public figure. Often there’ll be cases in which an advertiser uses someone’s likeness or voice to advertise a product, and I think those are not cases about property. A lot of the property casebooks say they are.
In the book, though, I focus by and large on real estate and tangible personal property. And I do that mostly because intellectual property, spectrum policy, all of those, the readership for those is much more specialized, and I wanted to stick with examples that lay readers would understand and follow.
Brown: Now, the medical example you gave raises a very interesting question about the relationship between the body and the self. In some accounts that I’ve read, property rights extend from one’s self-ownership, but is that actually a misconception, or is it really something distinct in the law? Bodily autonomy is not the same thing as self-possession or self-ownership. Is there a relationship there, or do we have to kind of set those distinctions in separate categories?
Claeys: Garrett, that’s an excellent question. I don’t think there’s one single answer to it. I think the answer depends on what your normative priors are. If you are a libertarian, the way you just talked about it in your question makes perfect sense. So people have rights in their persons; they have autonomous control over their persons; and they ought to have autonomous control over the things they want to incorporate into their projects.
If one is more of a classical natural lawyer—and I think I’m more in that category—then one ought to have freedom to use one’s person for one’s own well-being, and one is entitled to try to incorporate some things that aren’t your own person—and not your own extensions of your own person—into your projects.
But the other people around you are entitled to the same opportunities. And so then, in both cases, you have rights: rights of person and rights of property. But the normative case for the rights of property ends up being different because the normative justification for property explains why one person’s entitled to get prior use of a resource when other people could have taken and used that resource.
We don’t ask these questions about someone’s identity, their name, their reputation, because we say those are all markers of this one agent and ought to stick with that one agent and her purposeful plans. But if we’re talking about a piece of land or a cow, or a bucket of water, a thousand or a million people in the same community could, in principle, in the abstract, all use those resources for their individual well-beings. And so you need a good account why one person gets priority in relation to the others.
Brown: So there are conditions on the use of a thing. I’ve seen that word used, but I’ve also seen the word resource to apply to things more generally. Now there are conditions on that use. Is it always exclusive? Is it because the use of a thing means that there’s a competing claim and that the law is meant to adjudicate between those competing claims? How do we think about use and the conditions for that use?
Claeys: Garrett, I think in practice, people work with property almost by instinct, and they respect property intuitively or habitually. And a philosopher whose work I hold in high regard, named James Penner [author of The Idea of Property in Law (2000)], has a great example of this. He asks somebody to think about when he walks into a parking garage, it doesn’t even occur to most people to think, “Oh, that’s a nice car. I’d like to step into it and drive it off.”
And property works that way because property consists of a set of relations that are called in rem relations. And a relation is an in rem relation if people who might owe a duty to someone else don’t even need to know anything about the name, the intentions, the backstory of the person. They just need to know that there’s somebody or something out there, and whoever happens to be the right-holder, I know I have an impersonal duty to that right-holder.
And so we don’t touch cars that aren’t ours, at least when our parents have taught us well, because we just know there’s somebody out there who has a property in this thing, and if it’s not ours, then we owe this very impersonal duty not to mess with it unless the person who has the property lets us.
And property rights are exclusive in that sense, in that they are in rem. They’re exclusive in another sense. Somebody who has property in a resource, other things being equal, is entitled to be left alone in the continual use of it. And you see this play out in a lot of details in law. The simplest detail is when somebody suffers an ongoing violation of a property right. In a lot of fields of law, if somebody wants to go get an injunction, a court will say you need to show irreparable harm. You need to show there’s some special reason why there’s harm, and why the court should use its resources to boss around the defendant, and manage the defendant, and tell the defendant on the threat of contempt, “Don’t mess with the plaintiff’s rights.” For other rights, like contract rights, courts are skeptical about awarding injunctive relief. For property, they’re very quick to award injunctive relief, and the justification is that property normally entitles a right holder to broad managerial discretion to decide when a thing may be interfered with, when not, whether to license its use, when to object to its license to use.
And if a non-owner interferes with the use of a thing, the interference with that managerial authority counts as serious harm, harm warranting an injunction.
And so property rights are exclusive in the sense that they’re in rem, and they’re exclusive in the sense that if there’s an ongoing violation, the courts will use vigorous legal remedies to stop that from happening, to protect the managerial authority of the property holder.
Brown: Preparing for the conversation, I came across A. M. Honoré’s essay about ownership, and many of his examples are amusing. In it, he talks about the “substantial similarity in the position of one who ‘owns’ an umbrella in England, France, Russia, China, and any other modern country one may care to mention. Everywhere the ‘owner’ can, in the simple uncomplicated case, in which no other person has an interest in the thing, use it, stop others using it, lend it, sell it or leave it by will. Nowhere may he use it to poke his neighbour in the ribs or to knock over his vase.”2
He’s cleverly indicating, too, that one is also restricted by the governing laws about the use of that thing. You can’t be a nuisance to your neighbor in your use of it, right?
Claeys: Exactly. That’s absolutely right, and I covered that topic most of all in the book in chapter 13 on common law and on torts and on harm principles. Property law, in its broadest sense, identifies the kinds of resources that are objects of property. So what are things, and what are instead personality-rich rights, like rights of reputation and personal identity and privacy.
And then property law works out when there ought to be private property, how one acquires property in a resource that isn’t yet owned by anybody, then how an owner can slice and dice his rights, and then what correlative rights the different people who have lesser property interest in a resource owe in relation to each other. But any of those people then can use their things and use their things to come into contact with people who they don’t have property relations with. And then the law of agency, the law of contract, and law of torts, and some other areas of law then step in, and they all regulate the relationships between the property-holder and other people.
And there’s a Latin maxim that covers this: Si utere tuo ut alienum non laedas—“Use your own so you don’t hurt somebody else’s.” And here, the basic idea is, assuming that somebody does have property, the property rights entitle that person to use the resource in a valuable way, but every other person in the same community is a being with a fair opportunity to survive and thrive too, and you have to use your own resources respectful of other people’s equal opportunities to survive and thrive.
And the “Sic utere” maxim is a very basic idea that runs throughout a lot of law. It expresses the idea that you can use your property productively, but on terms that give other people like opportunities. Most of the law of tort on property topics is addressing that question in detail.
Property as the Guardian of Other Rights
Brown: Now, there’s an influential textbook called The Guardian of Every Other Right by James Ely. I believe he was grounding that title in something that Justice John M. Harlan declared, that “due protection of the rights of property has been regarded as a vital principle of republican institutions.”3
And I think this goes back to the way the Founders considered property as primary. You see that reflected in various Founding documents of the time. But it also goes even further back to John Locke.
What does that mean to be the “guardian of every other right”? I think we tend to prioritize things like speech, or the Second Amendment, or other things in our current discourse. Property doesn’t seem to take prominence of place. So, how do we think about this reversal or this changing of priority?
Claeys: It’s a great question, Garrett. Just to let listeners know, it changes topic a little bit and in a way that was a challenge in writing Natural Property Rights. For the most part, the book is trying to walk readers through questions about legal architecture, how one designs a system of property law. Property can also serve rhetorical functions in political rhetoric and in political debates. The phrase “Property is the guardian of every other right,” that’s using property in this rhetorical PR sense. And that’s a mainstay of classical liberal political thought, and there are different arguments for it.
Let me start with John Locke. Property has two faces. If one is a liberal—the origin of the word liberal is from liber, the Latin word for a free person—liberalism is about freedom. Freedom from what? Freedom from absolute rule by priests or by monarchs or by aristocrats. And so you need then a vibrant account why people ought to be free.
And, why the individual in a principled way comes before the state and the community. John F. Kennedy is famous for saying, “Ask not what the country can do for you. Ask what you can do for your country.” That’s an illiberal thought. We should ask what the country can do for us. The government has the power to throw us into jail, to tax us, to say that the things we thought we owned are actually owned by somebody else. And all the things that the government can do, it can back up with the sheriff or the marshal and jail and lethal force.
The deepest question in political philosophy is: Why can the government use lethal force? Why can the government institute rules that seem to limit our life, our liberty, our property, and our other rights? And if one says property is the guardian of every other right, the first thing one is saying is that the first function of government is to secure to people rights to acquire reasonable shares of resources that these people can then use for themselves to make their own lives better and build their own life plans.
And when property is the guardian of every other right, it lowers the focus of government. So government cannot pursue projects to say, “We need these 50,000 people to be on the slaughter bench; they’re going to contribute to a bigger social cause.”
Instead, politics’ main function is to leave people freedom to take care of themselves and take care of their families and their loved ones to pursue projects that they, on the ground, find gratifying. Property does this, but it’s not the only right that does so. For example, Thomas Hobbes focuses much more on self-preservation. Property is a more social right than the right of self-preservation because one cannot have a complete system of property unless everybody in the community buys in and everybody thinks that the rules for acquiring resources are fair, the principles of taxation are fair, the rules of transfer are fair, the rules for leasing are fair.
And so property’s very conventional, and you need legislatures to weigh in and write laws. You need judges to work out common law doctrines. But everybody impliedly expects these doctrines to be fair to the haves and to the have-nots and to give the have-nots fair opportunity to get into the game. It protects the rights of the haves to keep what they have and be productive with it.
So, on one side, the right of property focuses government on protecting people. On the other side, because property is so social and there’s so much more detail work that needs to be done in law, it forces people to buy into the system and to participate in meaningful political debates and legal systems to flesh out a legal system that helps everybody work with what they have.
Aversion to Property Rights
Brown: Before we get into talking about your book, what is the general aversion or antagonism toward the concept overall? Many people have said that it’s either inherently unjust, or they say that property rights are a myth, that they’re really just a construction of particular forms of law.
Even to say that some societies don’t even recognize these rights as being a part of their social organization. How do we think about those differences and the way that it’s been critiqued? And I do think that there is something about the contemporary repugnance about the word exclusion.
In preparing for the interview, I came across Anthony de Jasay’s essay “Property and Its Enemies.” He says: “Exclusion is prima facie a violation of certain, albeit crude and gross notions about freedom, equality, and—why not?—justice.” And he goes on to say that these notions “are the wind in the sails of the sophisticated enemies of property who construct theories in which ethics is enlisted to impregnate ownership with guilt.”
I love the barb, but how do we think about these dismissals? Some of them are justified. There’s concern, you know, for instance, Native Americans, who didn’t have the same value system, and so they’re trading things that had no value to them. But also I am thinking of the concern about property being the great unleveller in society and reinforcing distinctions between the haves and the have-nots. Are there ways to think about these objections to the concept?
Claeys: So, Garrett, my answer to this question goes back to the question we were just talking about, about why is property the guardian of every other right, and what does it mean? I’ll give a big answer and then a smaller one. The big answer is that, in a lot of circles, it’s provocative to say that the government should serve the people and that the government should protect every person’s opportunity to figure out how best for herself to survive and thrive.
So if property is a metaphor for that understanding of government, there are people that are put off by the metaphor. There are people that want there to be a stronger sense of community, and they think they’ll be the leaders who set the agenda for what the community does. There are people who think that perfect equality is attainable and is a beautiful thing, and that inequality is an ugly, repulsive thing. And there are people who have technocratic sensibilities, people who think that they are good resource managers and that they ought to be put in positions as judges or regulators to say, “I can figure out for everybody else what the highest and best uses of things are.”
And people who have any of these three dispositions, to be a communitarian, an egalitarian, or a technocratic administrator, they want to make property seem ridiculous, because if it is ridiculous, then there’s more of a need for strong community, for ad hoc technocratic resource management, or for equality.
So now to the smaller answer. You used the word exclusion when you summarized de Jasay’s critique, and you used it in a sense that is not how I’d understand it. And a big theme of the book is that there are a lot of words that on the Internet you’d say they’re subjects for gaslighting. Academics say instead, “There are conceptual misunderstandings about different uses of that term.”
For a natural lawyer such as myself, property entails exclusion, but the exclusion is presumptive and the idea is there’s going to be a certain institutional arrangement. The right is an in rem right. The duty holders don’t need to know much about the individual, and presumptively, they need to stay away from interfering with the use of the thing unless certain particular reasons override.
But a lot of the critics of property will say exclusion means there’s one person who’s basically a dictator over a resource and can exclude everybody from it. So if you had a desert, 50,000 people in the desert, there’s one water well, and one person has the well, the right to exclude entitles the well holder to exclude everybody else from getting water.
That’s not how the natural law tradition understands exclusion. The exclusion is presumptive. It limits the reasons on which duty holders can act. People who don’t have property need to respect it, but a property fight doesn’t say that one person is a despot that can ignore everybody else. And a lot of the action in the book is trying to say, “Okay, if you think that property is too exclusionary, let’s look at the exclusive authority it gives the resource holder, and then let’s look at the limits on it. Are those limits unreasonable? I don’t think so. So what’s the problem?”
“Natural” Property Rights
Brown: So, as we turn toward the focus of your book, how does the term “natural” function here? How does it modify property rights, or in the case of natural law more generally, how does that set it apart as a tradition? How do we think of its importance in distinguishing it from another set of concerns?
Claeys: Very simple question, also a very devious question, because there’s a lot of different answers, Garrett. I want to say, first, “natural” is used in a lot of different theological and philosophical traditions, and it’s the kind of word that invites a lot of misunderstanding because people will understand that it means one thing when I mean something else.
As I used it in the book, “natural” has a few associations. One meaning is natural in the sense of the natural law tradition. Beings have natures, and part of their nature is to have a built-in goal, a teleological end. And for humans, their natural goal is in the short term to survive and in the long term to flourish, to become excellent examples of people.
And “natural” also means that these insights are things that are true to people being what they are. They aren’t products of conventions, and they’re not directives from any religion. Religions can recommend guidance that is consistent with what people can see using their rational faculties about what people are, but you don’t need religion to confirm what human reason can observe already. And so I guess, in short, natural means not based in convention, grounded in what it is to be a person, and pointing to the ends that people have, given the kinds of beings that they are.
Brown: Is there a sense in which natural is meant to distinguish from positive law, the law that is case law, that is statutes, and to signal that it’s prior, that it stands above the level of law or written law?
Claeys: That’s kind of the summary I just gave. One of the meanings of natural is “not grounded in convention.” Positive law is a convention. So nature sets a standard for judging whether positive law does a good job. The example I use in the book and I use when I teach is a speed limit. We could say speed limits are not grounded in nature, and that’s true because legislators have to write speed limits. But people have natural rights to travel, people have natural rights to the security of their persons, and people have natural rights to be secure in the use of their possessions. And those three natural rights, to travel, to be secure in one’s person, to be secure in one’s property, set pre-political standards for asking whether a speed limit is a good convention.
There are a lot of different traditions of nonconventional moral reasoning besides the tradition that one associates with Aristotle and Thomas and Locke and Grotius. So, for instance, Kant can be understood as a natural lawyer. Rousseau can be understood as a natural lawyer, and will-based libertarians can be understood to be claiming natural rights.
And the senses I meant of natural I think are different from those other traditions because what’s core in natural law-based natural rights is that people are beings that are reasonable, they can speak, they are capable of using tools, and they’re capable of using their intelligence to flourish. And the focus of all moral reflection at bottom is focused on helping people thrive as flourishing beings.
Brown: What seems to be important here is that you’re coming up with a coherent body of thought by which the positive law can be judged. It’s not that philosophy is a secondary activity, which somehow cleans up inconsistencies. You’re appealing to a higher level of abstraction for that intellectual rigor coherence so that you can know whether or not the positive law has a faithfulness to something that’s more agreed upon, more established, and gives you a better sense of how to judge the rightness or wrongness of existing law or in its manifestations in different jurisdictions or countries.
Claeys: I think that’s right, Garrett. The question makes me appreciate, though, that I was writing to two different audiences when I wrote the book, and so maybe I want to take your question and say that I’m giving two different answers—one to people who are interested in philosophy and don’t know a lot of law, and people who know a lot of law and don’t know so much philosophy.
For the philosophers, there are two main lessons. They’ve been told by a lot of philosophical authors that natural property rights don’t work, they’re extreme, there are devastating objections to them. To philosophers, one lesson is that the standard objections to natural property rights are actually not nearly as formidable as the people think. And the second lesson is a lot of the objections can be addressed if you look at the details of legal doctrines. Legal doctrines provide protection for property with safety valves that give force to, that carry into effect, sensible philosophical limitations on property rights.
For the lawyers, who don’t know so much philosophy, I think what you said in your question is exactly what I’m trying to do. For lawyers, in my book I’m trying to make them appreciate that a legal system, it has a lot of convention in it, but in that system lawyers doing in property law what speed limits do in traffic law. There are conventions that help people exercise more rights that are more fundamental than anything you see in the conventions, and property rights set helpful standards for evaluating whether a system of mortgage law, a system of landlord-tenant law, environmental protections, adverse possession, whether they’re all doing what a just system of property law ought to do.
Property Rights and Human Well-Being
Brown: So let’s talk about your book. In general, what was the problem that you set out to address?
Claeys: I’ve been working and writing on property law for 20 years, and when I started writing, it seemed to me perfectly reasonable to write about what James Madison and John Locke thought about property. As I kept writing, it started to occur to me that a lot of people who are scholars in law or philosophy think that a Lockean approach is subject to devastating objections, and so devastating that you can just look at these objections and say, “These settle it conclusively. We don’t need to worry about a natural rights perspective.”
And it seemed to me there was a need for somebody to show property rights can be grounded in human well-being and flourishing, and the devastating objections aren’t in real or serious argument devastating. And, that a lot of the system law we have is still on autopilot, working on principles that Locke and James Madison and James Kent and other Founders and 19th-century American and British lawyers would have found happy.
So it seemed to me somebody needed to explain these principles of property and the principles of natural law behind them, to then show how property is justified and limited by those principles and then show how the architecture of American and English property law is still on autopilot carrying into effect those principles.
Brown: One of the ways that you deftly deal with this in the book is by taking up the ideas of others. You mention Robert Nozick, Jeremy Waldron, and several other legal theorists and famous political philosophers who’ve contributed—and Locke, of course, whom you’ve already mentioned. How did you navigate some of those positions? Where are they strong, and where do they come up short?
Claeys: I meant for the book, Garrett, to be as good a model as I could make of reasonable and civil discourse. We all live in society, and a society has to live by the will of a reasonable majority. And to get the will of a reasonable majority, the majority needs to make decisions, and in a good decisional process a good argument should give everybody their due. And so my first intention was to justify property consistent with natural rights and then to show that justification can tackle all the problems that a humble lawyer expects a comprehensive system of property to cover.
So, why are some resources held in common? Why are most resources ownable? How are conventional legal rights and things carved up to map onto the real resources we see in the real world? How are resources that are not yet owned reduced to private possession? And then how can an owner slice and dice rights to a resource, and what correlative rights and duties do the owner of a tenancy and a landlord have in relation to each other?
And so I wanted to go through those, but then I also wanted to deal with the philosophical skepticism we’ve talked about in a couple of other questions. And you see this skepticism coming from libertarians on one side. Nozick has some great send-ups and critiques of Locke’s theory of labor. And then you see contemporary egalitarians and communitarians—Jeremy Waldron comes to mind very quickly—making a lot of the same kinds of criticisms.
And so what I then thought I’d do is organize the book’s first half to derive and to justify the natural right to property. And in the second half of the book, I was going to walk through most of the topics that a property lawyer would associate with property and show how the general natural right to property applies in the institutional messy details of a lease and a landlord’s residual ownership rights or rights of nuisance or takings rights or police regulation of property.
And so then, as I went through each of those big topics, when one of the major theoretical rivals happened to weigh in on that topic, then it was easy to just bring up in those rivals’ arguments as part of the discussion how best to ground and to organize rights on a particular topic of property law.
Snow Dibs
Brown: Now one of my favorite passages in the book is talking about snow dibs. Now, is this a good example of talking about the important role of practical reason and in thinking through various claims that are made about property? It was a hilarious example that I know from my experience of being in Chicago at different times, but can you talk a little bit about that example and why it’s illuminating?
Claeys: I would love to talk about snow dibs, Garrett. I talk about snow dibs in chapter 3, and I did so deliberately for a couple of reasons. Snow dibs are wonderful because most property rights that people are familiar with now, they’re layered with three and four and five levels of different kinds of convention. If you have a mortgage, there are going to be local statutes about the statute of frauds, about exactly how the mortgage needs to be executed to be executed validly. And there’ll be case law on this. And if you try to do something as a landowner, the common law of nuisance will weigh in, but then the state might have environmental regulation, and then the local government might have zoning rules.
With snow dibs, you see that there is a conventional set of property laws, and people temporarily suspend them, ignore them. And so that’s as close as we’re going to get to the state of nature. Or to put it another way, property looks a lot different if you’re looking at property in an Aboriginal community than it does when you’re looking at property in a system that has well-established rights of ownership and land and high-value personal resources. Snow dibs are an example on the margins—in a very sophisticated, complex system of law—where people are going back to the kinds of rights that Aboriginals would find the typical property rights.
With snow dibs, the background against which they operate is the conventional, the positive law is a law about parking regulation. So, on any street in a neighborhood, there’ll be parking spaces on the street. And in the simplest system, first come, first served. Once your car is there, you can keep it there. In more sophisticated systems where there’s a homeowners’ association or the city government gets involved, then there’ll be zones, and you have to have a permit to use the parking spaces in the zone. But in some, though not all, northern cities in the US, if there’s a blizzard in some cities like Chicago, and Pittsburgh’s another one that comes to mind, while the snow’s on the ground, the first person to dig out the spot gets the—wait for it—exclusive use of the spot for some time that’s worked out in the community.
And so in Chicago, the time is as long as the snow’s on the ground. In the neighborhoods in Boston that recognize space savers or snow dibs, I think that the custom is that everybody gets to use the spot for 48 hours and then you have to move your car. We were talking a bit earlier about property being the guardian of every other right and what work does a natural right to property do, and these questions you see answered in a very concrete way with a snow dib.
So the conventions about parking spaces, those secure people’s pre-political rights to travel and secure use of their cars when you have sunny weather. But then when there’s wintry weather, those spaces are useless, the cars are useless. A system of law ought to secure to people and help them exercise better their rights.
And so if somebody renders the space useful again by digging it out, that’s the same kind of activity as an exploration company finding gold or finding a ship somewhere. They’re bringing back into human society a resource that’s not in human society—is underused—and is making it useful again. That kind of activity should be rewarded consistent with labor-desert principles.
In snow dibs systems, the community, by social consensus, without any change in the law, agrees to ignore for a couple of days the parking system, the conventional rules about parking. They do so to encourage and reward the labor to dig out the spaces, and that helps everybody use the spaces for human benefit and to use their cars for human benefit. But then when the reasons that justify this departure of convention go away, then the conventions go away too. And we go back to the ordinary, positive law of parking.
“In any city that recognizes a snow dibs system, dibs rights are enforced by self-help. The nicest dibs claimants leave passive-aggressive notes on the windshields of the cars in the spaces they claim. Other claimants shovel snow back onto trespassing cars, deflate those cars’ tires, scratch their sides, or rip out their radio antennas. And occasionally, city police turn blind eyes to such retaliation. During a 2000 blizzard, when asked whether Chicago police would respond to retaliation, then-mayor Richard Daley answered, a shoveled-out space was ‘their property. . . . If someone spends all that time digging their car out, do not drive into that spot. This is Chicago. Fair warning.’”
—Eric Claeys, Natural Property Rights
Brown: And this also illuminates some of the rationale behind adverse possession. Is that right?
Claeys: Yes, Garrett, they’re similar in some ways, different in others. Similar in this sense: Adverse possession is codependent on or parasitic with ownership. So natural property rights are rights to use resources, but a system of morality that protects people’s rights to use things can, in some circumstances, justify somebody having the intense managerial authority we associate with ownership, consistent with the question you asked earlier about ownership.
But property rights are rights that come with responsibilities. It’s like with Spider-Man: “With great power comes great responsibility.” With a right comes responsibility, and there are two responsibilities that come with property: You are to use the resource in which you have property and to use your rights in a way that you communicate to others or you broadcast to others, “I want to keep and enjoy the exclusive use of this thing.” And so ownership takes property further away from its justification. Ownership entitles one person to total control over a resource, even if she’s not using it right this minute, on the bet that most people will use their resources over a long period of time for their own well-being and the well-being of others.
But ownership is subject to these two principled restrictions: “Use it or lose it,” and “Communicate claims.” So if an absentee owner or a mere bare title owner neglects the property for long enough, then she loses the principled basis for having ownership. Adverse possession, in terms of the doctrinal justifications, focuses more on the title owner’s failure to broadcast to others her claim to keep owning the thing than on failure to use productively. So if you let someone onto your property and the person acts in a way that seems to occupy the land exclusively, adverse to your claim for long enough, you lose your claim.
And so the doctrinal judgment, or the judgment of the law is carrying into effect, a judgment of morality that the title owner isn’t repelling adverse claims in a way we expect a sociable neighbor to do. In substance, though, it has the secondary effect of encouraging people to monitor what they own and to use what they own and put it in the hands of people who are going to use it well. Because the kinds of resources that get adversely possessed are ones where the person’s not watching and not using, and somebody else comes on and starts using it.
Eminent Domain
Brown: Another important topic that you address from the get-go in your book is eminent domain, specifically the Kelo decision (2005). Can you talk a little bit about that decision and what it got right or wrong according to your idea of natural property rights?
Claeys: Sure, Garrett. Before I get into the question, let me say a little bit about eminent domain and why it’s such a rich topic. In some of our earlier discussions, we’ve talked about liberalism, and liberalism is the idea that a just government serves and respects the rights of all the citizens. And there are different concrete examples that symbolize liberalism this way.
One example that has nothing to do with property is a compulsory draft. On what principled basis should a free government be entitled to draft people and say, “You’re going to have to join the army, learn how to work with a gun, risk your life on the front line, and even die.” A government may justly do that, but it’s a very serious justification that a government needs to come up with to say why it can do that.
Eminent domain does something similar. A government that’s supposed to serve your property rights can say, “Actually, here we can take your property.” If a government’s meant to protect property rights, on what principled basis can it say, “We need to take somebody’s property”? And so eminent domain asks a lot of very basic questions about how a government relates to the property rights it’s supposed to protect.
So, in the book, I offer two principled answers explaining when a government may condemn property. One I associate with eminent domain in a very narrow sense, a sense much narrower than most lawyers and politicians expect today, and the other I associate with what I call in the book “police regulation.” So eminent domain, as I justify it in the book, it’s a right of the government to condemn a private property for the whole public to use. And so if the government needs more land for military facilities, it can do so, because the military serves the whole public by defending it.
If the government needs more land for government buildings, the public uses the property by giving the services that the government office gives. If the government gives land to a common carrier that provides electricity or cable service or some other service to which all citizens are entitled, that’s also public use. But in those cases, the private rights of individuals may justifiably be downplayed so that the entire public can get a better chance to use something.
There’s another set of cases in which a government may condemn private property to regulate it, and the example I use in the beginning and at the end of the book is when a government pools or it unitizes several oil rights holders’ mineral rights. If property rights are rights to put the underlying resources to use, most of the time the way to protect property rights is to give people rights to decide for themselves how to use things. But some resources only have a couple of uses, and all those uses are more or less the same. Oil and natural gas are two of those resources. All the oil and natural gas can be used to produce energy, and they can be used in a lot of hydrocarbon chemicals. But to make either of those uses, you need to get hydrocarbons in the ground out of the ground. And so there are narrow conditions in which a government may say, “There’s a resource. Everybody who has rights in this resource has an interest in seeing the resource used in several ways that are similar, and this kind of coordination supplied by the government will help produce the resource or help coordinate the resource’s uses better.” When eminent domain is used in contemporary practice, it’s often used to talk about those kinds of justifications.
Kelo v. City of New London
So let me turn now to the Kelo case. And the Kelo case raises questions about both of those two principal justifications for eminent domain. But the Kelo case also has a lot of symbolism attached to it. In an earlier thread in our conversation so far, we talked about the kinds of character types who mistrust property, and one kind’s the technocrat. Kelo is very much a case pitting a conflict of visions between two different understandings about political ordering.
If you think political ordering should start on the ground and go bottom-up, you want property rights to be important. If you think that there’s a place for the society to set priorities top down and for technocrats to administer what happens in the community so that top-down plans come into effect, property rights are in the way and you want local governments to have broad discretion to manage resource uses.
So in the Kelo case, the New London Development Corporation condemned land, I think it was 16 lots, owned by nine different owners in Fort Trumbull. And the New London Development Corporation said that economic development in New London was a public use that would justify the use of eminent domain to condemn their properties. And Susette Kelo and the other plaintiffs said that there was not yet a federal Supreme Court case saying that the condemnation of property and transfer of that property to a private entity to generate general economic development, that was not a public use as understood in the federal case law.
The closest case before it was a case called Berman v. Parker, in which authorities in DC condemned land in Southwest, DC, on the ground that it was blighted and it was deteriorated. And the New London authorities did not say that the Fort Trumbull neighborhood was blighted.
So Kelo and the other plaintiffs argued that the court had gone a step too far when it said that there wasn’t blight in this neighborhood, but it could still take their property, hand it to a commercial developer, and do so to generate the public benefits of economic growth throughout the community. And the Supreme Court sided with New London Development Corporation, agreed that the condemnation of land to produce general economic benefits was something that was hinted at in the Berman case and supported by a couple of earlier cases by the US Supreme Court, and the court didn’t think that that was that big an extension of federal law.
Now, in legal sense, Susette Kelo and the other plaintiffs lost. The case was over at the US Supreme Court, and the condemnation was complete. There was then a huge public backlash. And as I recount in the book, there were paramilitary groups that called up Susette Kelo offering to bring guns and other weapons to help fight against condemnation. And there was blowback in a lot of states, so then in a lot of states, states passed legislation or the people voted for constitutional amendments limiting eminent domain powers so that the holding in Kelo could not happen in those states. And authorities in the state government in Connecticut and in New London were horribly embarrassed by all the bad publicity.
Susette Kelo had had her house with a new riverfront view, and so they allowed for her house to be excavated out of the ground and moved to another location with another nice river view. So she got to keep her house in that sense. But that happened as a gracious gesture by an embarrassed city government. It didn’t happen because she won her case.
Brown: Now, the decision in Kelo led to a considerable backlash, against the decision as being this stereotypical case where the corporation wins out over the individual. And it was even recounted in a movie, I think it’s called The Little Pink House. So it’s now trotted out as an example of this gross violation of the rights of an individual to use her house as she saw fit.
Claeys: I think that teaches two conflicting lessons. On one hand, I think that the case did create a symbol of things that a competent, respectful government should not do. And even though Kelo lost the case, the loss was a pyrrhic victory for people who support broad-ranging local development.
On the other hand, a lot of the laws and the constitutional referenda that were adopted in the states, they do only cosmetic work. If a developer and a local government are really determined to condemn a lower-class neighborhood, they can do so using other kinds of strategies besides the one that the New London Development Corporation used in the Kelo case.
The laws and the referenda that were adopted after the Kelo case, they stopped condemnation and transfer to private entity to generate general economic growth. They did not stop condemning land, saying that the land is blighted. And so the move that’s still made is the local government will hire a consulting firm, who then goes around the neighborhood saying, “I saw a broken window in this property. These three properties over here are significantly below the median value of land in the neighborhoods. There are a lot of other substandard uses. This is blighted, so you can condemn.” Nothing in any of the backlash to the Kelo case stops governments from using that strategy to condemn land and redevelop it.
That just shows you lawyers often like judicial reform. If a court orders something, lawyers think the parties will fall into line. Politics is messier. The people that supported property rights criticized what happened in Kelo, and they generated a lot of revulsion. But then legal insiders knew better the details about how eminent domain is used. They made the bare minimum concessions to the outrage to preserve the most of what they were doing. I’m fine with that system of property law, which needs to be protected and maintained by the people. You need an active citizenry to protect their rights.
Protecting and Limiting Property
Brown: As we conclude, what is something distinctive about your point of view that our listeners should know and possibly as an invitation to read the book and to engage with some of these philosophical and legal arguments?
Claeys: Garrett, I think I have two pitches. One pitch is to the reader who has heard that property is a natural right and who has also heard that that way of thinking about property is outmoded, that it can’t possibly work. If you want to read an account that explains why property is justifiably a natural right, and how a system of morality protects property when it deserves to be protected and limits it when it should be limited, I hope my book gives an account of that.
And there are going to be other readers who are interested in understanding more about property law and why our system of property law might be just, and how our system of property law needs to protect everybody and make compromises to protect different interests in different situations. The second half of the book tries to work through all the basic topics in property and show how a system of property law is securing natural rights in a lot of different doctrines at different times.
Brown: Excellent. Well, definitely one of the reasons to read it is the fine examples that you give throughout, like snow dibs, like embedding a sandwich in a sidewalk, like whether you can color driftwood with neon paint [whether the act of altering it makes it property]. There are many such examples where you’re trying to surface some of these distinctions, mainly because other people have raised these examples themselves.
Theory of Social Change
One final question I have is when you wrote the book, did you have a theory of social change in mind, or at least a theory of legal change for the way in which your book would contribute to legal discourse?
Claeys: Great question, Garrett. I think the short answer is, no. I was trying to put a chip on every spot on the proverbial craps board. I think there’s two main routes for social change. One is through public participation in elections, and then another is through the court system.
I didn’t want to take sides in those debates. If you want to know what I think, my instinct is usually that broad social changes happen more because a broad-based political movement lobbies for something to happen and elects people to make it happen than happens through courts.
So I guess in the book then, the principles are all couched in a way to give everyday laypeople and to give lawyers ways to think about property and to argue about it in a political vocabulary that allows for everybody to make their claims. And I hope that that could be used in political debates about zoning.
It could be used in political debates about justifiable environmental regulation, tax policy and progressive taxation, or more contemporary legislation about whether Amazon and other companies can fly drones over our property. But a lot of the topics in the books are ones that legal specialists in courts know about, and I hope that the language in the book gives lawyers and judges principles to work with that tie to contemporary doctrine and to smooth that doctrine around the edges.
Brown: Excellent. Well, this conversation has been very wide ranging. I have certainly learned a lot, and I hope our listeners have too. So, thank you, Eric Claeys, for joining this episode of Humane Pursuits.
Claeys: Thanks again, Garrett.
John Moore was a patient treated for hairy cell leukemia at UCLA Medical Center whose removed spleen cells were used, without his informed consent for research and commercial purposes, to develop the “Mo” cell line. He was the plaintiff in Moore v. Regents of the University of California, 51 Cal. 3d 120 (1990), a landmark case addressing informed consent and property rights in excised human tissues.
Honoré’s essay can be found in Oxford Essays on Jurisprudence, edited by A. G. Guest (Clarendon Press, 1961).
Drawn from Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897).
