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Published online by Cambridge University Press: 18 June 2009
Suppose the prevailing distribution of property rights is unjust as determined by the relevant conception of distributive justice. You have far more than you should have under that theory and I have far less. Then I defraud you and in doing so reallocate resources so that our holdings ex post more closely approximate what distributive justice requires. Do I have a duty to return the property to you?
There are many good reasons for requiring me to return to you what I have taken. One is that while you may have no right in justice to all that you own, it does not follow that I do, or that I have a right to take it. Thus, requiring me to return the property to you is a way of recognizing that I had no right to take it from you in the first place.
1 To clarify: You have no right to them in the best theory of distributive justice. The purpose of this essay is to determine the conditions under which you would have a certain kind of “right” to the property: a right that is sustainable by corrective justice, even if it is not one that follows from the best theory of distributive justice.
2 See Section II for an argument against this claim.
3 It is a little misleading to refer to forced transfers as “mutually advantageous,” even when full compensation is paid. That is because the victim does not ordinarily gain from the transfer, even when he is fully compensated. Instead, he is made indifferent between his ex ante and ex post positions. This problem can be easily fixed in either of two ways: To insure that forced exchanges are in fact mutually advantageous, compensation should exceed what it would take to render a victim indifferent between his ex ante and ex post positions by epsilon (or one dollar, say); or instead of referring to forced, but fully compensated, transfers as mutually advantageous, we might simply refer to them as welfare-enhancing transfers in which no one is made worse off.
4 A voluntary exchange that involves many bargainers all capable of behaving strategically can be more socially costly than a forced transfer in which compensation is not subject to negotiating and is instead set by a third party.
5 Coleman, Jules L., Risks and Wrongs (New York: Cambridge University Press, 1992), esp. chs. 16–20.Google Scholar
6 It does not matter for my immediate purposes which formulation—welfare or well-being—we use, nor does the general account presuppose any particular conception of what is to count as the appropriate baseline.
7 Since wrongs are invasions of rights, we have to understand what it is to have a right in order to understand what it is to commit a wrong. In understanding rights, the important distinction is between their content and their structure. The structure is the analysis of rights, an account of what is analytically true of rights—what it means, in other words, to have a right. Some (like Joel Feinberg) hold that rights are valid claims; others (like Joseph Raz) argue that rights are normative grounds of duties; still others (like Ronald Dworkin) claim that rights are trumps in political arguments.
Suppose that Feinberg is correct; what is true of rights analytically (that is, as part of their structure) is that they are valid claims. It is one thing to note that rights are claims; it is another to reveal the particular claims individuals have. That will depend on the content of the specific rights individuals have and the substance of the particular claims associated with each individual right or with rights of certain types. The kinds of valid claims that comprise rights will range over various domains. Thus, if someone has a property right of a certain kind, that will entail that he has valid claims regarding, among other things, the terms of its transfer. The terms of transfer specify the conditions that must be satisfied in order for transfers of resources to comply with the constraints imposed by rights. The terms of transfer constitute what I call the transaction domain.
Whereas the structure of rights is given by a philosophical account of what it is to have a right, the content of rights is given by a normative theory of rights that specifies, among other things, the terms of legitimate transfer. If I have a right to a resource of some sort, say, a painting, part of what that means, its structure, is that I have certain claims with respect to the painting. This tells me nothing yet about the specific claims or powers I have with respect to the painting. I might have the power to exclude others from viewing the painting other than on terms agreeable to me; or I might only have the power to charge people a fee for viewing it, I might have the power to set that fee, or I might have to accept a fee set by an agency of some sort. I might have the power to sell the painting and to exclude others from taking it without my consent. Or I might have the power to sell the painting, but not to exclude others from taking it, provided they compensate me. I might have the power to determine the level at which compensation is to be set, or I might have to accept compensation determined by an art agency. And so on. All of these possibilities are compatible with the claim that I have a right to the painting. They differ with respect to the content of that right, the powers the right confers on me, and the constraints it imposes on others.
The content of rights depends on the underlying normative theory of rights. Suppose that the point of having rights is to promote welfare understood in, broadly speaking, utilitarian terms. Rights are valuable to the extent they are welfare maximizing. The norms governing transfer of rights will then reflect the goal of welfare maximization. Thus, the constraints imposed by rights, the powers and claims conferred by them, will be sensitive to empirical conditions and their possible impact on utility.
8 109 Minn. 456, 124 N.W. 221 (1910).
9 If, however, your car rear-ended mine (due to my faulty brake-lights), then my negligence would have been responsible for that.
10 The relationship between community standards, custom, and criminal statutes, on the one hand, and negligence (or unreasonable risk-taking), on the other, is unsettled and quite controversial. Should custom, for example, constitute the standard of reasonable care? Or instead, should it establish the prima facie standard of reasonable care? Does it establish a rebuttable presumption of care? Or strong evidence of it? Or simply evidence? Or does it have no special claim at all? My point is that the content of even general norms can have an important “local” dimension in the sense that the duties the general norm imposes on individuals differ depending on the norm's content, and its content often depends on local understandings and practices.
11 See Ellickson, Robert C., Order without Law (Cambridge: Harvard University Press, 1989).Google Scholar
12 Coleman, , Risks and Wrongs, esp. ch. 21.Google Scholar
