2

The Private Function of Property

1. INTRODUCTION

Everyone has the right to own property alone as well as in association with others.

Article XVII of the Universal Declaration of Human Rights 1948

IT IS DIFFICULT to deny the need for some form of property. As Hayek would put it, although property is not indispensable, historical experience teaches us that human action and not design confirms its necessity.1 Or, as Posner notes, no-one would bother to cultivate land, investing much time and effort, if others were free to help themselves to the product of the work.2 Despite its apparent necessity, the idea of property suffered a decline in legal scholarship in the early part of the 20th century, largely as a consequence of Hohfeld’s deconstruction of property.3 It has since been reinvested with a new vigour. This might be a consequence of the collapse of the communist hegemony in the former Soviet Union and the emergence of capitalism as the dominant political ideology of the 20th century.4 It may also be a result of the way in which property has been adapted to meet new agendas, such as the use of property rights and market mechanisms to tackle environmental issues.5 In any event, it is clear that private property rights and free market mechanisms form an

indispensable part of contemporary social order.

1FA Hayek, The Constitution of Liberty (London, Routledge and Kegan Paul, 1960).

2R Posner, Economic Analysis of Law (Boston, Little Brown, 1992) ch 3.

3WN Hohfeld, ‘Some Fundamental Legal Considerations as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16. Also WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, Yale University Press, 1919).

4C Sunstein, ‘On Property and Constitutionalism’ (1993) 14 Cardozo Law Review 907.

5L Breckenridge, ‘Protection of Biological and Cultural Diversity: Emerging Recognition of Local Community Rights in Ecosystems under International Environmental Law’ (1992) 59 Tennessee Law Review 735; RB Stewart, ‘Controlling Environmental Risks through Economic Incentives’ (1988) 13 Columbia Journal of Environmental Law 153. There is a considerable body of literature in which property-rights-based tools are advocated for fisheries management. See ch 1, p 8 above.

22 The Private Function of Property

What many recent calls for private property have in common is the claim that private property rights make us all more prosperous.6 In contrast, this book is more concerned with the capacity of property to address the crises facing global and domestic fisheries and to provide a mechanism for achieving legally defined conservation and management objectives. However, given that property discourse and the application of property rights in practice impact upon the allocation of wealth and power, this book must also concern itself with this facet of property. It is important to highlight these distinct perspectives because although they are not necessarily incompatible, they may on occasion conflict with each other. In this chapter, we consider how the justifications of property influence the particular and specific forms of property. In a pluralist context no single set of property values dominate. However, it is clear that certain elements are common across all property justifications, and they place important restrictions on the scope and form of private property or justify the use of other forms of property to regulate certain things.

2. PROPERTY AND EXCLUDABILITY

Property, in its broadest sense, is an institution governing the use of things. It is an economic institution in the sense that it is concerned with the allocation and use of goods and it is a social institution in that property provides a means to achieve social order.7 It is also a legal institution: law is the vehicle for the definition and regulation of any regime of property. Property is thus a shared paradigm, our understanding of which is legitimately informed by a variety of intellectual disciplines. In providing an account of the legal institution of property, the point here is not to dispute the validity of non-legal perspectives on property. Rather it is to point to the fact that property rights must be legally constructed. Property rights are the product of property rules and property rules are located within legal systems. This means that property rights are invariably exposed to the values and limitations which inhere within a legal system and any analysis of property that disregard such values and limitations is incomplete.

6As Rose points out, what advocates of private property have in common is their desire to maximise preferences—ie generate increased social or economic wealth for the members of a society. This argument for the wealth enhancement function of property is a compelling one and it can be traced to utilitarian theories going all the way back to Bentham. C Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership

(Oxford, Westview Press, 1994) 3.

7One should note that not all things are subject to the institution of property, nor is property the only means of controlling or regulating things. This can be achieved through other regulatory measures, and is evident in fields such as the provision of public services.

Property and Excludability 23

In abstract legal terms, a property right refers to a state of affairs in which one party, the right holder, has a claim on an act or forbearance of another party, the right regarder, in respect of a thing.8 This right, where it is exercised, or is in force, has the authority of law behind it, meaning that failure of the duty bearer to comply with the right will justify the use of coercive measures to ensure compliance or compensation in lieu of performance. Moving beyond this basic outline of the relationship between the right holder and right regarder, it has become almost clichéd to describe property as a ‘bundle of rights’. Thus Honoré provides us with an account of the incidents (sticks in the bundle) of ownership.9 He defines 11 such incidents: the right to possess; the right to use; the right to manage; the right to the income of a thing; the right to the capital of the thing; the right to security; the rights or incidences of transmissibility and absence of term; the duty to prevent harm; liability to execution; and the incidence of residuarity. Given that these incidents may describe the composition of any form of property, be it private, collective or common property, what appears to be crucial is how the quality and content of the bundle of rights varies in practice and who holds them.10

More recent literature on private property rights has further distilled the legal essence of property by narrowing the range of incidents essential to property and by pointing to the relative quality of the incidents in practice. For example, Christman notes that virtually any analysis of property will focus on a number of core concepts—use, destruction and transfer.11 Drawing upon Honoré’s analysis, he considers that only the first five incidents are essential to ownership.12 The other incidents, such as the right to

8The recognition of a claim right may entail certain duties or acts of forbearance. Such duties follow from the existence of a recognised claim right, which must first be established through the prescriptive process.

9AM Honoré, ‘Ownership’, in AG Guest (ed), Oxford Essays in Jurisprudence (London, OUP, 1961) 107. Similar approaches have been adopted by others. See F Snare, ‘The Concept of Property’ (1972) American Philosophical Quarterly 9 and L Becker, Property Rights: Philosophic Foundations (London, Routledge and Kegan Paul, 1977) ch 2.

10Thus private property will only exist when a person enjoys a certain minimum amount of these incidents. See Honoré, Ibid 108. Common property differs from other forms of property in one significant respect: it is a non-exclusive right. Although exclusivity is central to common property, in a sense, its application is antithetical. Common property is an inclusive right. Thus, although a common property right holder may enjoy possession, use, and so on, this is done so inclusively. As a general rule, the points below about exclusivity do not apply to common property. However, this qualification may be subject to further caveats. A State may decide that a resource is the common property of only its citizens. This means that externally the resource is effectively collective or private property in the sense that the State is the owner and may exclude non-common property rights holders from the resource. Secondly, management of a common property regime will require the implementation of resource use rules in practice, and when a person contravenes such rules they may be excluded from the common property. For that person, at least, the resource is no-longer common property.

11J Christman, The Myth of Property (Oxford, Oxford University Press, 1994) 19.

12Ibid 19–20.

24 The Private Function of Property

security, transmission and absence of term, are considered to be adjuncts to the core incidents.13 Christman regards the incidence of residuarity as a structural necessity of the legal system which protects ownership and is not an element of ownership itself.14 He is also sceptical about the prohibition of harmful use and rejects it as an essential component of ownership. This distinction between essential incidents and non-essential incidents of ownership is also made by Waldron, who regards the prohibition on harmful use to be a background constraint which places limits on what anyone can do with an object, whether it is their property or not.15 Carter concurs and makes out a similar argument in respect of liability to execution.16

If property rights are to be regarded purely as claim rights, then Christman, Waldron and Carter would appear to be correct in their evaluation of Honoré’s incidents, because a claim right to have one’s capacity limited would be nonsensical. The right holder can only claim that which he may hold. He cannot claim that which is required of him.17 Conversely, the right regarder’s position is responsive, and is defined by how he reacts to the claim. Thus, the essential incidents of property, as a claim right, appear only include those things that logically comprise the claim, whereas acts of recognition appear to dictate the limits of that claim. This is the pure view of property comprising only of those incidents that give the right holder’s claim any meaning, namely the right to possess, the right to use, the right to manage, the right to the income of a thing, and the right to the capital of the thing.18 The other aspects of ownership are those limits that are imposed by the right regarder, ie the duty to prevent harm and liability to execution, and these are viewed as external to the right.

So we come to understand property in terms of excludability: the right holder’s authority to exclude other persons from the res.19 This is not

13Ibid 187.

14Ibid.

15J Waldron, The Right to Private Property (Oxford, Clarendon Press, 1990) 32–3, 49.

16A Carter, Philosophical Foundations of Property Rights (London, Harvester Wheatsheaf, 1989) 5–7.

17Thus the right holder cannot claim a prohibition on harmful use, although he might expect this to shape the extent of his property right.

18The right to income has also been reconceived by Christman on the grounds that it, or rather income per se, cannot be regarded as something that is exclusively derivable from ownership. In reality income is the sum of various market processes. ‘Income interests’, as he calls this right, serve an allocative function rather than an autonomy protecting function and so are not essential to ownership. Christman, n 11 above, 169. This point is crucial, because if income is derived from external factors, which become distorted, ie the market is imperfect, then the right to such income must be questioned. Accordingly, he points out that the right to income must be considered separately from control type rights in order to ensure that distribution of property is egalitarian: Ibid, chs 7–8.

19One may note the strong parallels between this reduced account of property in legal terms and economic accounts of property.

Property and Excludability 25

exclusion per se, because it might not be exercised, and it is not exclusiveness because other persons can have interests in the res;20 rather it is excludability in the sense that it is the owner’s legal right to exclude others from his property.21 This is what Underkuffler calls the common conception of property: the idea that property involves the protection of individual interests against collective power.22 However, does excludability so understood capture the whole essence of property? Here we take a point of departure from the pure view of property, a position which is explored in greater detail in the next two chapters. The starting point for this departure is to recognise that both rights in general and property rights in particular are relational constructs, constructs that are contingent upon social institutions for their meaning and operation. If we start from the position of property in terms of a social institution, an institution that is responsive to the needs of society, then it follows that it is society at large that will dictate the scope and limits of that institution. As Gray puts it:

‘[p]roperty’ is the power-relation constituted by the state’s endorsement of private claims to regulate the access of strangers to the benefits of a particular resource.23

This does not require us to reject the important function that property has to play in protecting individual interests. Indeed, such interests must be a feature of any form of social organisation. Rather, we would discount the view that exclusory rights must take any degree of absolute priority over other interests. To quote from Gray and Gray, it is ‘beginning to be agreed that the power relationship implicit in “property” is not absolute but relative’.24 Although strong private rights may dominate many areas of property discourse, the prioritisation of private rights is not a logical requirement of property per se, but a product of the social context in which property rights have evolved. We should not conflate the strong historic need to defend individual autonomy from adverse intrusions by the apparatus of the State (which is reflected in the common law) with the normative requirement for property to do so in all instances. It is certainly more than arguable that where the apparatus of the State are constrained by democratic processes, then the need for property to stand as the bulwark of individual autonomy is somewhat reduced. To narrowly construe

20S Munzer. A Theory of Property (Cambridge, Cambridge University Press, 1990) 22. Exclusivity is then developed at pp 89 ff. See also J Penner, The Idea of Property in Law (Oxford, Clarendon Press, 1997) ch 4.

21Ibid 95–8.

22L Underkuffler, The Idea of Property (Oxford, Oxford University Press, 2003) 39–42.

23K Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252, 294.

24K Gray and SF Gray, ‘Private and Public Property’ in J McLean (ed) Property and the Constitution (1999) 11, 12.

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property in ‘terms of raw exclusory power’ is to locate property in the hands of the past, not the present.25

Even if we accept the pure view of property as excludability, then it follows that when exclusive control cannot be established over a resource then it cannot be reduced to private property. The parameters of excludability are set out by Gray. He proposes three determinative factors that limit excludability—physical, legal and moral.26 We shall consider each of these factors in turn, but what is important to signpost is that even those favouring strong private rights to exclude, accept private property must be limited in the interests of society. Moreover, these moral considerations are not only concerned with dictating the application or non-application of property rules to particular things. In many instances they operate to justify the imposition of a particular form of ownership, or justify some duties being imposed upon the rights holder, or permit the State to modify or adjust the rights without the consent of the rights holder.

A resource may be physically non-excludable, for example, a beam of light or an idea. Of course not every resource is capable of such simple classification. For example, one may claim a private property right in the spectacle of a sporting event.27 This sporting spectacle may be physically excludable only by the construction of a roofed stadium that prevents those outside the stadium from watching the spectacle. When the stadium is absent, or is open to the skies, then one cannot claim a private property right in the spectacle so to prevent visual intrusion. As such, it is necessary to observe that physical excludability exists only where it is reasonably practicable to exclude others from the benefits of that resource in its existing form.28 As Gray notes, a test of reasonable practicability plays an important role in defining the scope of property rights. For example, under US law a trade secret is susceptible to protection against appropriation only where the inventor takes efforts that are reasonable under the circumstances to maintain secrecy.29 In respect of maritime

25Ibid 13. In support of this, they cite a wide array of common law authorities, including: Lord Camden CJ in Entick v Carrington (1765) 95 ER 807, 817; Deane J in Gerhardy v Brown (1985) 159 CLR 70, 150; Justice Rehnquist in Kaiser Aetna v US 444 US 164, 179–80; Justice Marshal in Loretto v Teleprompter Manhattan CATV Corp. 458 US 419, 435; and Justice Ritchie in Colet v The Queen (1981) 119 DLR (3d) 521, 526.

26Gray, n 23 above, 269.

27See Victoria Park Racing and Recreation Grounds Co. Ltd v Taylor (1937) 58 CLR 479. In this case property rights were claimed over the spectacle of a racing event. The construction of a platform overlooking the event and the broadcasting of commentary and reports from this platform were alleged to be a nuisance.

28The qualifier of form is an important one. For example wild animals are not physically excludable unless they are somehow reduced into captivity. This reduction to captivity may be regarded as a change in the form of the resource.

29S 1(4)(ii) Uniform Trade Secrets Act 1986. See RA Klitzke, ‘The Uniform Trade Secrets Act’ (1980–1) 64 Marquette Law Review 277, 279.

Property and Excludability 27

areas this notion has clearly played a role in defining the extent of coastal State authority or claims or ownership of the sea and its resources.30 The impossibility or impracticability of physical exclusion may be remedied by using the law to secure exclusion. Thus, until quite recently fish have, as a general rule, been considered incapable of physical exclusion, and so incapable of being considered the object of a private property right.31 Only once legal mechanisms, ie quotas, were developed for facilitating ‘exclusion’ could property rights arise in fisheries. For such resources, factors limiting legal excludability are vitally important.

In practice, legal excludability functions in both a narrow and wide sense. The narrow form of legal non-excludability is illustrated by the following case. In Kellogg Co v National Biscuit Co, the plaintiff was unsuccessful in a suit against Kelloggs to prevent them from using the term ‘shredded wheat’ in relation to biscuit products.32 Kelloggs were permitted to use the term, and the goodwill that went with it, because the plaintiff had failed to create a protectable proprietary interest through intellectual property laws relating to patents or trade marks.33 In short, if the law provides the owner with the means to legal exclusion and if that person fails to use it, then they cannot subsequently exclude persons from that property. Clearly, in cases where the proprietary interest is ephemeral or not easily susceptible to physical exclusion such legal excludability is absolutely crucial. This is particularly important in cases where the scope of property law expands into marine areas because legal control may be the only practical means of delimiting and enforcing proprietary rights. Most fish in their natural, pre-capture state are a fungible good that is highly mobile and so cannot be individually allocated to specific fishermen, hence the use of legally constructed quota or fishing licences to limit access. The wider view of legal excludability takes into account the full range of legal limitations on the exclusive use of a thing. Here property is reduced to a bundle of rights of entitlements, and law operates to reserve certain of these incidents from the holder of the property. For example, certain rights of access over land may be reserved from a landowner’s exclusive use of his property. Typically such legal limits are the product of powerful and overriding public interests. These are explored in greater detail in chapter 3.

Legal excludability may work in two other ways. First, limits to legal authority act as a limit on law’s capacity to guarantee excludability. For example, a State cannot guarantee title over a resource located beyond the

30See chs 5 and 7 below for further details.

31See further, ch 8.

32305 US 111 (1938).

33Ibid 112. Such legal measures may also be contractual. See D Kennedy, ‘Form and Substance in Private Law Adjudication’ (1975–6) 89 Harvard Law Review 1685, 1714.

28 The Private Function of Property

limits of its sovereignty; or a particular resource may be shared between two States, which means that it cannot be regulated without some degree of cooperation, as in the case of an international watercourse. In such cases, the limits of prescriptive and enforcement authority serve to limit the extent of unilateral excludability over a thing. Secondly, the operation of law as a form of practical reason places limits on what forms of legal right can be advanced and recognised as a matter of law. For example, all legal systems require a degree of coherence between particular legal rules in a related field of law. More specifically, coherence requires that localised rules are consistent with higher order principles, such as the requirement that one cannot use one’s property in way harmful to the interests of other persons. In a novel context, a specific rule on how to deal with property may not exist or a questionable use of property may arise. In such cases, legal reasoning and the requirement of coherence will require the novel situation to be treated in accordance with the general rule. This may result in limits to excludability.34

Turning now to moral excludability. Resources may be incapable of propertisation in the face of powerful and compelling moral reasons. Gray notes that in all societies there are certain resources which are regarded as so

central or intrinsic to constructive human coexistence that it would be severely anti-social for these resources to be removed from the commons.35

Undesirable or intolerable consequences would follow if one person, or a group of persons, was permitted to control the access to those resources.36 Society, through institutions such as the legislature and judiciary, engage in a process of defining and redefining the moral limits to property to ensure that property remains consistent with more highly regarded human values. Thus, values such as the preservation of channels of communication and freedom of speech,37 national security,38 protection of cultural property39 and protection of the environment frequently shape the limits of property.40 Although excludability is at the heart of private property, paradoxically an excessive focus on the private or exclusive

34These two limits on excludability are considered in greater detail in ch 4.

35Gray, n 23 above, 280.

36Gray notes that this reflects the well known point of Locke that appropriation is not allowed where it would not leave ‘enough, and as good left in common for others’: Ibid 280–1.

37See Davis v The Commonwealth of Australia. (1988) 166 CLR 79.

38Thus Part One of the Anti-Terrorism, Crime and Security Act 2001 permits the seizure and confiscation of ‘terrorist property’.

39See Penn Central Transportation Company v New York City 438 US 104 (1978).

40Other highly valued objectives may be pursued. In Gerhardy v Brown, members of the Australian High Court observed that the incidents of ownership were subject to more important social objectives, such as social equality, the provision of education and health: (1985) 159 CLR 70, 103 (Mason J), 152 (Deane J).

Justifications of Property 29

function of property may result in a detriment to private rights.41 The following review indicates that certain limits are inherent in most justifications of property. These limits to property lend support to the argument that the legal construct of property may also require particular limits on private property or require its positive use to meet certain fundamental social objectives.

3. JUSTIFICATIONS OF PROPERTY

Debate about the justification of property is, in essence, a debate about the consequences of excluding access to things. This is well-trodden ground and includes a number of well-known theories used to justify property: the natural rights approach, the liberty theory, the desert theory, the utility/economic approach and property as propriety.42 Although certain aspects of these justifications may vary as political ideologies wax and wane, contemporary institutions of property are, in reality, highly pluralistic and this is reflected in the particular and specific kinds of property with which we are familiar on a daily basis. For example, a fisherman is asked why he wants to own the fish he catches. His immediate response is that he has always caught the fish in a particular area and he argues that he should continue to enjoy such an entitlement. Besides, he has invested time, effort and capital in catching the fish, and so he deserves to be rewarded for his efforts. He also knows that if he owns the stock or enjoys exclusive rights to fish he is encouraged to invest in it, perhaps resulting in bigger and better catches. When pushed, he adds that fishing somehow defines him as a person, that it is part of his heritage and

41As Macpherson observes: ‘For when the liberal property right is written into law as an individual right to the exclusive use and disposal of parcels of the resources provided by nature and of parcels of capital created by past work on them, and when it is combined with the liberal system of market incentives and the rights of free contract, it leads to and supports a concentration of ownership and a system of power relations between individuals and classes which negates the ethical goal of free and independent individual development. There thus appears to be an insoluble difficulty within the liberal democratic theory.’: ‘Liberal-Democracy and Property’ in CB Macpherson (ed), Property, Mainstream and Critical Positions (Oxford, Blackwell, 1978) 199–200. See also The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, Clarendon Press, 1962) and ‘Democratic Theory: Ontology and Technology’ in Democratic Theory: Essays in Retrieval (Oxford, Clarendon Press, 1973). Also, Munzer, n 20 above, ch 5.

42For an overview of such accounts see LC Becker, n 9 above; S Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, Clarendon Press, 1991); J Christman, n 11 above; J Grunebaum, Private Ownership (London, Routledge and Kegan Paul, 1984); JW Harris, Property and Justice (Oxford, Clarendon Press, 1996); CB Macpherson, Property: Mainstream and Critical Positions (1978); Munzer, n 20 above; A Reeve, Property (London Macmillan, 1986); A Ryan, Property and Political Theory (1984); RB Schlatter, Private Property: The History of an Idea (London, Allen and Unwin, 1951); J Waldron, above n 15.

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culture.43 Pluralism means that several accounts of property may operate at the same time. Indeed, any promotion of property rights which is derived from a single justification, such as wealth enhancement, ignores how other values embedded in the institution of property necessarily configure particular and specific forms of property.

These familiar justifications, labour/desert, liberty, autonomy etc, do not merely justify a claim right, they also shape the scope and content of the resultant right. These values are embedded in the complex property law systems by which we govern the use of things. In the following review, it is clear that few justifications of property exclusively support private property or unrestricted forms of ownership. Indeed, a number of justifications demand limits on ownership either to protect certain minimal private or collective interests. The public function of property, which addresses collective concerns about the allocation of things, is developed in the next two chapters, which in turn informs the analysis of property rights in fisheries in chapter 8.

(a) Property as a Natural Right

This approach starts from the proposition that individuals have certain essential rights that derive from the independence and dignity of individuals, as expressed in terms of rights over the self.44 This reasoning has been extended to support the claim that people are entitled to hold those things resulting from their art, intelligence and industry, an approach which is most closely associated with Locke’s labour theory, which asserts that it is the expenditure of labour by a person that reduces a thing to private property. Locke was the first to make the case for private property as a natural right of the individual, and despite some flaws it remains a standard justification for private property.45 Locke claimed that although the world and its resources were originally common to all, each person had property in one’s self.46 Since one has property in one’s body and one’s labour, then one must

43Support for this approach can be drawn from the comments of the Human Rights Committee. In the Mahuika case, the HRC considered fishing rights to be an integral part of their culture, although this was to be reinterpreted in the context of the modern world: Apirana Mahuika et al v New Zealand Communication No 547/1993, New Zealand, 15 November 2000, CCPR/C/70/D/547/1993, para 9(3). A similar approach was taken in Kitok v Sweden Communication No 197/1985, 27 July 1988, CCPR/C/33/D/197/1985 and Länsmann et a. v Finland, Communication No 511/1992, 26 October 1992, CCPR/C/52/D/511/1992.

44Such rights arise without operation of the law and so are termed natural rights. See H Steiner, ‘The Natural Right to the Means of Production’ (1977) 27 Philosophical Quarterly 41.

45Locke’s approach has been resurrected most recently, at least in a secular fashion, by Robert Nozick in Anarchy, State and Utopia (Oxford, Basil Blackwell, 1974).

46‘Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person’: Locke, n 50 below, pt ii, § 27.

Justifications of Property 31

have property in the product of one’s labour.47 To bolster this argument, he argued that labour is special because it adds to the value of the good.48 Accordingly, only productive labour, which increases the supply of goods and improves human life, will generate a property right.49 A further, and highly persuasive, feature of this approach was that it defended the individual from arbitrary encroachments of governmental, or rather monarchical, power.50 As civil society was formed to protect individual property it was inconceivable that government, exercising the powers bestowed by society, could in any way interfere with anyone’s private property except to the extent necessary to protect the institution of private property. Two further aspects of Locke’s argument should be noted. First, he adds the qualification that the object acquired is not more that anyone can make use of before it spoils.51 This seems to follow from the proposition that only productive labour results in property.52 He then posits that there must be ‘enough and as good left in common for others’.53 This proviso ensures that no matter how scarce resources become there is always sufficient left to guarantee a means of subsistence to all.54 In this sense Locke’s account of property is permeated by a fundamental duty to preserve mankind.55

47‘Though the Earth and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State of Nature hath provided, and left it in, he hath mixed his Labour with, and joined it to something that is his own, and thereby makes it his Property. It being removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men’: Ibid § 27.

48Ibid § 40.

49Ibid. Buckle terms this form of labour as ‘workmanship’ in order to distinguish it from the more common understanding of labour: above n 42, 151.

50J Locke, Second Treatise of Government, reproduced in P Laslett, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus (Cambridge, Cambridge University Press, 1964) para 138. Buckle notes that Locke served the cause of the Whigs and his benefactor, the first Earl of Shaftesbury in this respect: Buckle n 42 above, 162. Cf Filmer, Locke’s archrival, who defended the absolute power of the monarch: R Filmer, in P Laslett (ed), Patriarcha and other political works of Sir Robert Filmer (Oxford, Basil Blackwell, 1949).

51Locke, n 50 above, pt ii, §§ 37–8.

52‘It will perhaps be objected … That if gathering the Acorn or other Fruits of the Earth, &c. makes a right to them, then any one may ingross as much as he will. To which I answer, Not so. The same Law of Nature, that does by this means give us Property, does also Bound that Property too. God has given us all things richly, I Tim. vi. 17 is the Voice of Reason confirmed by Inspiration. But how far has he given it to us? To enjoy. As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for Man to spoil or destroy.’ Above n 50, Bk ii, 31.

53Ibid. Waldron notes that this is not really a qualification: n 15 above, 209–18.

54The operation of this proviso is quite complex. Waldron is highly critical of Locke in this respect noting that the proviso is inconsistent with the underlying recognition of the right to self-preservation and should be dropped: Waldron, n 15 above, 212–3. Buckle appears to rescue the proviso, noting that the productive value of labour ensures that subsistence for all is maintained. In a money economy subsistence and even flourishing becomes possible without property. Buckle, n 42 above, 157–61.

55Ibid, para 6. Also see Book I, para 42.

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Despite its moral and intuitive appeal, the natural rights approach has a number of well-documented shortcomings, and in order to sustain this approach, further qualifications on the right must be added.56 First, the labour theory lacks internal coherence. The special role given to labour is difficult to justify or distinguish from other acts. Proudhon was foremost of Locke’s critics in this respect, arguing that labour cannot be distinguished from other acts of claim, such as flag-raising or declarations, and which are, in effect, versions of property from first occupation.57 Accordingly, the labour justification can only be redeemed by giving a special role to labour. Becker suggests that this is possible by making the following qualifications.58 First, labour puts a distinction between a private property and common property, the distinction being added value. Secondly, as unappropriated property has no value, and labour is commonly a means of appropriation, then it would be unjust to deny one the benefits of one’s labour. Thus the value of goods is contingent on the mixing of labour. Finally, labour would not occur unless the expected benefits (added value) accrue to the person labouring. Thus one is entitled to the whole of one’s benefits. However, this turns the argument into a consequentialist argument, in that it relies upon the effects of labour, and to this extent it is inconsistent with the natural rights approach.

A further difficulty is the inability to reconcile the idea that every one has property in their body with the idea that everyone has property in the fruits of their labour in all cases. Becker makes the point that either parents have property in their children and the children have no property rights, or the children have property in their own bodies and their parents do not always have the right to the fruits of their labour.59 This contradiction can only be overcome by making the rights to the fruits of one’s labour derivative of the right to property in one’s body. Giving property rights a higher priority entails grounding them in other natural rights such as the right to life or liberty. Liberty permeates the Lockean thesis in another way if one takes the premise ‘every man owns his labour’ to mean that every man has the right to do any act, gain income from any act and manage his acts under the conditions they so choose. To be acceptable, such a premise is necessarily subject to the caveat that the exercise of one’s labour does not violate the rights of other people.

56 D Hume, A Treatise of Human Nature, LA Selby-Bigge (ed) (1888) Book III, pt ii, s 3; J Waldron, n 15 above, ch 6; J Tully, A Discourse on Private Property: John Locke and his Adversaries

(Cambridge, Cambridge University Press, 1980).

57PJ Proudhon, in JA Langlois (ed), What is Property?: an enquiry into the principle of right and of government (1966) 84 ff. Hume and Kant are critical of Locke for simply providing a disguised version of first occupancy: see Grunebaum, n 42 above, ch 3.

58Becker, n 9 above, 35.

59Ibid 37.

Justifications of Property 33

The metaphor of owning the body does not accurately extend to owning non-human property. Crucially, property in the former can exist without any reference to distribution, whereas in the latter it cannot. If it did not, then it would, when considering original acquisition, simply amount to a first come, first served arrangement with no restriction. The act of labour-mixing is equally problematic. As Nozick points out, why should the mixing of labour result in the gaining of property rather that the losing of one’s labour.60 This part of the Lockean approach, at least, can be rescued. Thus O’Neil points out that the labour mixing metaphor is often misunderstood and that the real point is the improving effect of labour.61 Even then the question remains why, if one makes an object more valuable by labour, should the labour give title to the whole and not just the improvement?62 If labour is rewarded by recognising the contribution of the person as a property right then the labour theory collapses into a desert theory of property.63 Equally, if ‘labour’ is special in that it increases the social bounty of goods, then it could be claimed to be a form of utilitarianism.

Turning to the second flaw in Locke’s reasoning, when Locke talks of a natural right to property he refers only to the right to possess, use and manage the property laboured upon. Accordingly it is claimed that the labour theory does not apply to the modern conception of property typified by Honoré’s incidents.64 Property that is not necessary for life is not justified, so excluding the accumulation of property beyond what one can use. Recalling that full liberal ownership is far more extensive than this, it is interesting to note that whenever Locke considered a right to the income derived from property and the right to transfer property, he was careful to demonstrate that these rights are only made possible by the invention of money and were as a result conventional rights.65 Income and transfer rights are contingent on external things such as the market, social cooperation, and the desire of others to acquire the goods one has laboured upon.

The natural rights model of property fails the test of historical validification. For Locke these rights are historical and contingent, in that they arise from what individuals have done, and not from what society dictates we ought to do.66 Yet, no pair of rose tinted spectacles allows one to imagine that the right to property has been a universal and fairly

60R Nozick, n 45 above, 174–5.

61O O’Neil, ‘Nozick’s Entitlement’ (1976) 19 Inquiry 468, 476–9.

62Ibid.

63Becker for one is guilty of collapsing the labour theory into a particular form of the desert theory. Becker, n 9 above, 43–56.

64See J Christman, ‘Can Full Ownership Be Justified By Natural Right’ (1986) 15 Philosophy and Public Affairs 156. Cf Buckle, n 42 above, 180 ff.

65Locke, n 50 above, para 50.

66In this light, Nozick shares some ground with Locke.

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applied norm.67 Men have not been considered equal and the development of property rights institutions simply does not follow or reflect the natural rights approach.68 Experience shows that most property regimes have resulted from a myriad of conventional relationships rather than inherent natural rights. A final difficulty, inherent to all natural rights theories, is that the meaning, content and relevance of any natural right only arise in a societal context.69 For example, the right to life entails that others have a duty to respect it. If there was only one person then the declared right would be redundant. Thus natural rights are always socially contingent and so depend upon social convention for their legitimacy.

The Lockean approach has been revived by Nozick. Although Nozick doubts Locke’s emphasis on labour, he acknowledges the value of the Lockean proviso ‘enough and as good’ if it is qualified. Nozick argues that appropriations, by whatever acts, are just if they do not violate the Lockean proviso. The proviso, which protects the rights of other individuals, acts as an absolute constraint on acts of appropriation. Thus, my act of acquisition is just only if it does not place others in a worse position than they would be if I did not acquire the resource. This proviso has, he argues, a strong version and a weak version. A person may be made worse off in two ways:

first, by losing the opportunity to improve his situation by a particular appropriation … and second, by no longer being able to use freely (without appropriation) what he previously could.70

A strong proviso would exclude appropriations that resulted in others’ diminution of the first and second type, whilst the weak version would only exclude the second.71 He concludes that only the weak version

67The institution of slavery, which is clearly contrary to a theory of natural rights, was a pronounced feature of the Ancient Greece and Rome, and modern Europe and North America. Arguably, this continues in the form of pay discrimination between men and women, and between other sectors of society.

68Nozick tries to salvage the natural rights approach by positing the principle of rectification, which remedies any flaws in historic title caused by past violations of natural rights: n 45 above, 151, 230–1. This principle relies on the Rawlsian maximin to provide a model of the rectified distribution of wealth. Yet such a principle is too simplistic for it cannot take into account the complex implications of wealth distribution, and the varied capacities, opportunities and desires that would have otherwise resulted. Alternatively, one could argue that given historical uncertainty as to title, the right to a particular property could be expressed in terms of probability, and can only be overturned by clear evidence of a defect in title caused by an injustice. See M Rothbard, For a New Liberty (London, Collier Macmillan, 1978) 23–6. However, this would, as Christman argues, mean that title is occupation. Christman, n 11 above, 65.

69Indeed it can further be claimed that labour itself must be a socially defined concept.

70Nozick, n 45 above, 175.

71Ibid 176.

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is necessary to a theory of justice.72 Taking this approach to its conclusion, Nozick argues that if all unowned objects have been appropriated, then, as long as one is not worse off under a system of private property than under a state of nature, the resulting distribution of goods is just. However, his central argument is flawed because it fails to consider alternative systems of property rights, such as socialism, that might make one better off than under liberal ownership. For Nozick, only a comparison with the pre-property situation can be used as a basis for rejecting private property. Accordingly, the door is open for other forms of property. A second problem with Nozick’s approach is his failure to acknowledge how value is attributed to resources, a process which must affect his evaluation of a particular system of distribution of goods. Christman notes that the non-property situation is left indeterminate.73 Or, put another way, the values which property is given, thereby enhancing the position of individuals, is variable according to external circumstances. It is arbitrary, thus providing another ground for complaint. A third criticism is that Nozick presents a thinly disguised version of property by first appropriation. It is first occupation with constraints.74

A second revival of the Lockean approach supplements labour with desert to produce a more plausible account of property.75 Although this cannot be described as a purely natural rights approach, this is not problematic if one accepts that property is a pluralist concept. The core intuition here is that, when a person performs some labour that is deemed by society as worthy of recompense, then they are entitled to that recompense. In this account, desert plays the major role. Crucially, desert is a socially constructed notion and so is determined by the wider community. Accordingly, this approach is exposed to influences from other accounts of property, and gives private property a very strong public dimension. Munzer, who advocates this approach, sets out a number of caveats to a labour/desert theory. First, labour/desert is qualified by the duty not to waste, spoil, or accumulate beyond one’s needs.76 Secondly, the net effect of an acquisition on others must be defensible, rendering it open to utility type considerations.77 Thirdly, any existing

72He argues that any appropriation may worsen the position of others by incrementally worsening the opportunity of persons subsequently attempting to appropriate resources: Ibid. This is illustrated by Christman: ‘So if the X here is a bushel of peaches, say, and Clara (a passerby in the state of nature) cannot appropriate the bushel of peaches that I have put into my basket (since I did), she may be able to pick some apples nearby (which are just as good) and thereby would not be rendered significantly worse off by my appropriation of the peaches, in Nozick’s version of the weak Lockean proviso’: n 11 above, 61.

73Christman, Ibid, 62.

74See Rothbard, n 68 above, 34.

75Munzer, n 20 above, 256 ff.

76Ibid 284.

77Ibid.

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rights are subject to change if post-acquisition changes in the situation result in moral restrictions being traversed.78 Finally, because of scarcity of resources, some labourers gain wages commensurate with the labour, rather than the resource.79

Despite its shortcomings the natural rights approach retains a measure of plausibility.80 Why is this? First, credit must be given to Locke’s strong narrative qualities. His justification of property is an account of how property developed from the original position in accordance with divine will and human reason. The emphasis on the special qualities of creative labour was both accessible and in accordance with Biblical exegesis. Also, the fact that Locke was also arguing towards a limit on the absolute monarchical power gave his approach strong liberal credentials. Subsequent reliance on the Lockean approach appears to be down to the temptation (or simple error) to substitute in arguments that are not internal to the rights-based approach. It is clear that Locke, in particular, reverts to liberty, desert or utility to reaffirm his approach, and others following in his footsteps have resorted to rationales such as creation,81 identification,82 or preference satisfaction to support their contentions. When combined with desert, the labour theory becomes a highly plausible account of property. At its core, the emphasis lies on the virtue and liberty of individuals rather than those incumbent in positions of power. The natural rights approach also respects the social contingency of property, which gives it broader political legitimacy. This suggests that any account of property that embodies fundamental moral concerns of a society will retain a measure of influence. In the present study, the notion that allocations of property should not result in waste or spoilage and that significant accumulations of property may be limited have a particular resonance for the use of important natural resources.

78Ibid.

79Ibid.

80See, eg, Becker, n 9 above, 32–56.

81An alternative account of Locke’s labour thesis if provided by Tully, who argues that what is at stake is an interest in a thing created: J Tully, n 56 above. However, creator rights go beyond what Locke intended and place too much reliance on Locke’s argument that labour makes up the greater part of a thing’s value.

82This line of reasoning suggests that the individual’s personality is extended into an object, and that the object should be reserved to that individual for to allow otherwise would result in an interference with that individual’s personality. Olivecrona uses the example of a farmer and his soil, and a town dweller and his house, to convey the type of relationship and expectations about property that exist: K Olivecrona, ‘Locke’s Theory of Appropriation’ (1974) 24 Philosophical Quarterly 220, 224. However, as Waldron notes such an approach must rely on the expectations that pre-existing structures of property rights generate. It is these and not the expectations and identification that are the basis of any entitlement: Waldron, n 15 above, 197.

Justifications of Property 37

(b) Property as Liberty

A number of arguments in favour of private property derive from liberty. What these arguments have in common is the idea that ownership of things gives people material independence, which in turn facilitates moral or political independence. If persons depend upon others for their material needs then they will in some way be beholden to them and unable to exercise true independence in their actions.83 To illustrate, one variant of property as liberty notes that men may have a capricious nature and act according to their whims. This may be mitigated by the introduction of property because it facilitates habits of foresight and prudence by establishing a connection between current action and future prospects. In short, it permits a continuing interest in the value of a resource.84 However, as Waldron rightly points out, most accounts of property from this approach do not fully explain why only private property facilitates liberty.85 If material needs and concerns can be satisfied according to some other method of resource allocation then surely liberty will be secured, thus negating the need for private property. This failure to unequivocally link liberty to private property is evident in Nozick’s influential version of the libertarian position.86

Nozick argues that any systematic attempt to redistribute property involves an unacceptable restriction on individual freedom.87 He rejects all ‘patterned’ or intended distributions of property, such as egalitarianism or utility, and puts in their place a theory of entitlement. The entitlement theory concentrates upon the procedures for acquiring title in a just manner. In other words one justly owns something if one has acquired it by means of just procedures.88 For this approach to succeed, Nozick has to vitiate any theory of redistribution. He does so by relying on the generally recognised respect for individual liberty.89 Unless one can demonstrate

83This can be traced to Mill, who pointed out that those who are independent of means have nothing to fear from others when expressing their opinions, whereas those that rely on others for the provision of their means ‘might as well be imprisoned as excluded from the means of earning their bread’. See also Rousseau, Social Contract, Book II, ch 3.

84See TH Green, Lectures on Principles of Political Obligation (London, Longmans Green, 1941) 212. This justification of property has been picked up by economists, who argue that security of tenure generates longer term interest in the maintenance of the resource.

85Waldron, n 15 above, 318–22.

86Nozick, n 45 above.

87Ibid 163. It is clear that Nozick is seeking to justify a capitalist approach to wealth, and that he is also advocating a full liberal account of private property.

88Ibid 153.

89His critique turns on the hypothetical basketball player, Wilt Chamberlain, whom fans are willing to pay an extra amount to see play. If the fans are willing to pay the extra amount and Wilt is willing to play for the remuneration then it would be unjust to prevent this occurring. Surely one must be allowed to give one’s property to those one desires. Obviously such a natural distribution of wealth would disturb any patterned or intended distribution of wealth and so redistributive theories of justice would require interference with individual liberty: Ibid 160–7.

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the legitimacy of an interference with one’s liberty to use or dispose of one’s property as one chooses then his approach holds true. However, Nozick fails to justify private property. Like earlier libertarians, he presupposes it to exist in a particular form. As O’Neil reveals:

The argument presupposes, so does not demonstrate, that it is wrong to interfere to restore disturbed patterns or end-states, and that such restorations are always redistributive and violate individual property rights. But it is just these property rights which have yet to be established. … Nozick comments at one point that we lack a theory of property (p 171). We do indeed, but the lack cannot warrant the assumption (cf pp 282–2) that individual property rights are rights to control resources in all ways, to dispose of them however and to whomever the owner wishes, or to accumulate them without limit. This interpretation of property rights must be established before the restoration of patterns or end-states by state action can be rejected as unjustified interference which violates individual’s rights.90

A further difficulty with Nozick’s approach is that huge disparities in wealth may arise where there are no legitimate constraints on what people may do with their property.91 This commitment to unequal holdings is problematic because it fails to address the fact that the extent of one’s holdings is an important factor in determining the extent of one’s liberty. Clearly a wealthy person has liberty to do far more than a poor person. This raises the spectre of material dependence hinted at by Mill and if this holds true then there must be a point at which the more fundamental value of liberty requires interference with property holdings. This point might be defended on grounds that the total store of goods produced is greater under a regime of private ownership, but at this point the argument moves away from one of liberty to one based on utility or efficiency.92

It is clear that this approach suffers from a failure to determine the scope of liberty, which is in itself a difficult task. The account of liberty used by Nozick is tautologous. In order to know what one is at liberty to do or refrain from doing one must know the extent of one’s liberty and one cannot use the right to liberty to determine this; it must be determined by an independent line of reasoning.93 Seen in this light it is clear that liberty based arguments can be recast in such a way as to defend whatever version of liberty one chooses. Thus, if liberty is comprised of

90O O’Neil, ‘Nozick’s entitlements’ in J Paul (ed), Reading Nozick: Essays on Anarchy, State and Utopia (Oxford, Basil Blackwell, 1981) 308–9.

91Carter notes that Nozick is attempting to secure the foundations of capitalism. Carter, n 16 above, 39.

92Christman, n 11 above, 81.

93It is possible to argue that the property rights acquired by the first possessors were full liberal ownership rights, but such seems to reduce to a claim that the right to property is derived from first occupation.

Justifications of Property 39

more limited property rights, as long as these are not interfered with, then liberty is maintained.94

Like the labour/desert approach, the liberal justification of property remains persuasive despite its shortcomings. Liberty is a compelling moral and political ideal, and the link between private property and liberty has strong narrative resonance.95 However, the link is not as secure as it first seems. From the foregoing it is clear that a system of property rights is contingent on, or derivative of, a theory of liberty, and constructing a coherent account of liberty is no easy matter.96 It is suggested that some guidance as to the parameters of the notion of liberty underpinning liberal justifications of property can be drawn from the account of the public function of property in the next chapter. Although there is some truth in the argument that material independence facilitates liberty, the assumption that private property is the only means of achieving this cannot be presumed and it is quite possible that liberty may be supported by other forms of property holding such as common property. Taking the second major failing with the libertarian approach, that it may lead to vast inequalities in holdings and wealth, it is interesting to note that Nozick tries to mitigate the extreme effects of private property by circumscribing liberty by a baseline condition. For Nozick the liberty to appropriate is limited to that which does not reduce the condition of another to one worse off than that found in a state of nature.97 This suggests that liberty cannot stand alone as a justification of property, or that full liberal ownership must in some circumstances be limited.

(c) Property as Utility

A utilitarian account of property claims that private property maximises human welfare. Thus Aristotle argued that private property is necessary to avoid conflict and social disharmony between users of resources in common ownership, and to ensure that the product of a resource is maximised.98 Hume justified property in terms of security of expectations.99 Accordingly, all people have an interest in stability of possession and an interest in the sanctity of their possessions, and this mutuality of interest

94This seems to permit reducing liberty to egalitarianism.

95Rose, n 109 below, pp 5–6 and ch 2.

96See JN Gray, ‘On Liberty, Liberalism and Essential Contestability’ (1978) British Journal for the Philosophy of Science 385.

97Nozick, n 45 above, 178–9.

98Aristotle, The Politics, trans and intro by TA Sinclair, revised and represented by TJ Saunders (Harmondsworth, Penguin, 1992) §§ 1262–1263.

99D Hume, Treatise of Human Nature, LA Selby-Bigge (ed) (Oxford, Clarendon Press, 1960). Also, J Bentham, An Introduction to the Principles of Morals and Legislation (London, Athlone Press, 1970).

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leads to an institution of property.100 Bentham reasoned that any action that augments the happiness of the community more than it diminishes it is consistent with the principle of utility.101 Happiness itself is comprised of subsistence, abundance, equality and security, and, of these, security has pre-eminence.102 Property is nothing more than:

a basis of expectation; the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it.103

If humans are capable of forming expectations about the future, then their well-being may be contingent on how well they are able to act in accordance with their intentions. Pleasure is experienced when these are satisfied, and disappointment when they are not, so utility is promoted by securing expectations regarding one’s possessions. Indeed, Bentham argued strongly against any form of State interference in property rights, which was seen to destabilise people’s security of expectation.104 The result of this is the protection of the socio-economic status quo, whatever this may be, by the priority of security (of expectation) over any existing or future need for a more equal distribution of property.105

Although accounts of property derived from utility appear to require a strong form of liberal ownership, this does not preclude other forms of property or restrictions on private property. As noted the key to property is the security of expectation and one can argue that other forms of property are equally capable of sustaining expectations.106 Moreover, property may also be subject to a number of legitimate interferences, such as taxation, that do not necessarily compromise security of expectations. Utilitarian

100Hume, Ibid, Bk III, Pt II, § II–IV, 484–516.

101Bentham, n 99 above, 12.

102See ‘Principles of the Civil Code’, in CK Ogden (ed) Jeremy Bentham: The Theory of Legislation (London, Kegan Paul, 1931) ch III.

103Bentham, n 99 above, 111–12.

104J Bentham, The Works of Jeremy Bentham (London, Simpkin Marshall, 1843) vol I, 311. Surely though there is an inconsistency in that intervention will generally be required to protect property rights.

105‘[W]here the distribution of property and power is concerned, to keep things in the proportion in which they actually are, ought to be, and in general is, the aim of the legislator. His great purpose is to preserve the total mass of expectations as far as is possible from all that may interfere with their course.’: W Stark (ed), Jeremy Bentham’s Economic Writings (London, Allen and Unwin, 1952) 3 vols, vol 3, 198. Cited in A Parel and T Flanagan (eds), Theories of Property. Aristotle to the Present (Waterloo, Canada, Wilfrid Laurier University Press, 1979) 225.

106As Christman states, expectations can be secured through a consistent and public institution of property, which may take a variety of forms. Christman, n 11 above, 102. Going further, he argues that as private property allows the free market to emerge then it is likely that people will be less secure in their possessions because of the unpredictability of the market. See also A Ryan, Property (Milton Keynes, Open University Press, 1987) 48; Becker, n 9 above, 56 ff.

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accounts of property have been subject to powerful criticisms, focusing on the conflict between utility and other moral goals such as justice, the problems of measuring human satisfaction and welfare, and the tendency of utility to result in unequal allocation of wealth and resources.107 Despite these criticisms utility remains a compelling justification for property.108 To overcome critical objections its advocates have adopted a more behaviourist approach that focuses on utility as a function of an ordering of preferences. Such preferences are exhibited through manifest choices and welfare is measured according to the person having more things that feature higher on the list of preferences. At this point, traditional accounts of utility dovetail with economic approaches to property rights.109

(d) Economic Approaches to Property Rights110

As noted earlier, economics has been given greater prominence in the protection and conservation of the environment, through economic valuation of natural resources and the application of economic cost/benefit models. Property rights are the principal mechanism by which values are attributed to resources. Advocates of private property claim that it is the most efficient means of allocating resources and that it provides an incentive for the productive use of resources.111 In contrast, common property is inefficient and will lead to the degradation of a resource.112 More specifically, the argument is that only when the full package of rights (use, management transfer and income rights) is vested in a single person are

107CB Macpherson, The Life and Times of Liberal Democracy (Oxford, Oxford University Press, 1977) 33.

108Becker notes that it is direct, technically simple and deductively valid, n 9 above, 58.

109The economic approach takes the individual as the basic unit of analysis. This individual is a rational self-interested agent that seeks to maximise his own preferences, hence the link with classical utilitarian approaches. See CM Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Boulder, Westview Press1994) 3.

110It is necessary for the commentary in this part to be more extensive because this approach underpins the most powerful claims for the introduction of property rights into natural resources and because, unlike other accounts of property, it claims to reduce a plurality of values to a single common denominator. As noted above, such claims need to be subject to scrutiny.

111Although economic justifications of property are found in earlier works by Bentham and Marx, they only came of age in the mid-20th century, influenced by the work of Alchian and Demetz, and the paradigmatic tragedy of the commons scenario. AA Alchian, ‘Some economics of property rights’ (1961) Rand Paper No 2316. H Demetz, ‘Some aspects of Property Rights’, (1964) 9 Journal of Law and Economics 61; H Demetz, ‘Toward a Theory of Property Rights’ (1969) 57 American Economic Review 347. G Hardin, ‘Tragedy of the Commons’ (1968) 162 Science 1243.

112Richard Posner has put the argument forward that common property which leads to the ‘tragedy of the commons’ should give way to private property. RA Posner, Economic Analysis of Law, 5th edn (1998) 36–45.

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efficient outcomes achieved. It is always better to ‘internalise’ some effect or factor, ie give people property rights over it, than to adopt some alternative system of use.

Before considering the core idea that private property leads to efficiency it is necessary to say something about externalities. Externalities are the effects of a transaction on parties other than the transactors; they are external to the transaction. Externalities may be positive, such as the effect of an improvement on your house to your neighbour’s property, or negative, such as air pollution emitted by a factory. Externalities are not intended, they result from the side effects of market behaviour. Neither are externalities paid for by the contracting parties. They are borne by parties who did not create them. Consequentially, any cost-benefit analysis will be incomplete because costs and benefits cannot be properly accounted for. The economic approach to property is based on the idea that efficiency is a plausible measure of utility. For an efficient allocation of resources to take place there must be no externalities. Internalising costs and benefits ensures that those best positioned to pay for something will do so. Demetz argues that private property systems emerge because externalities are best alleviated by the ascription of private property rights to individuals over the inefficiently used factors.113 In the absence of externalities a market is efficient because it ‘places every productive resource in that position in the productive system where it makes the greatest possible contribution to the total social dividend measured in price terms’.114 As the Coase theorem demonstrates, no matter how resources are initially allocated, free trade among rational agents ensures an efficient outcome.115 Thus property rights are inextricably linked to the free market.

The importance of efficiency cannot be understated.116 Unless the particular allocation of resources under private property demonstrates some measurable economic advantage over other possible allocations then private property fails to merit its special status. The most important tests of efficiency are those provided by Pareto superiority, Pareto optimality, and Kaldor-Hicks efficiency. A situation is Pareto superior where an individual increases their welfare and no-one decreases in welfare. A situation is said to be Pareto optimal when there is an allocation of goods which cannot make at least one individual better off without making another individual worse off. Or in other words a Pareto optimal situation has no

113Demetz, ‘Towards’, n 111 above, 347.

114FH Knight, ‘The Ethics of Competition’ in FH Knight (ed) The Ethics of Competition and other Essays (1935) 48.

115R Coase, ‘The Problem of Social Costs’ (1960) 3 Journal of Law and Economics 1.

116See Demetz, ‘Towards a Theory of Property Rights’ n 111 above. Cf F Michelman, ‘Ethics, Economics and the Law of Property’ in NOMOS XXIV: Ethics Economics and Law (New York, New York University Press, 1982).

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Pareto superior. The difficultly with Pareto rankings is that they do not allow for comparison of levels of satisfaction. Where a person is made worse off then a Pareto ranking cannot be made, and because numerous states exist in which persons are made worse off Pareto ranking of efficiency is severely limited. To get round this problem the Kaldor-Hicks test is used.117 The Kaldor-Hicks test allows the person increasing their welfare to compensate those whose welfare decreases. The compensation payment needs only to be hypothetical, in that should the payment be made then a Pareto improvement would be achieved. It should be reiterated that each of these efficiency rankings are ordinal, not cardinal. They avoid interpersonal comparisons. However, Christman disputes this and argues that the Kaldor-Hicks approach admits interpersonal rankings through the back door. Compensation is contingent on willingness to pay, and willingness to pay for something reflects how badly someone desires a thing. Clearly there must be some currency for payment of compensation which means that a comparison of desires can take place.118 Another criticism of the Kaldor-Hicks method is the Scitovsky paradox, which shows that more than one Kaldor-Hicks efficient result can be derived.119 The point we wish to stress here is that even these apparently ordinal efficiency tests cannot be regarded as free from interpersonal comparisons of welfare.

Proponents argue that only when full liberal ownership is vested in an individual are efficient outcomes generated. Competitive markets are uniquely necessary to produce economic efficiency, and these rely solely upon the existence of private property. Some further comments on the free market are required to clarify this.120 A market is a place where individuals voluntarily trade goods and services, and a free market is one that is free of trade constraints. A perfect market is said to exist when the following conditions are met.121 All agents must be rational, in the sense that they act to maximise their own utility. All economic agents must be price takers—there should be an absence of monopolies or other groups that can unilaterally affect the price of goods. There should be no transaction costs. Thus all

117See N Kaldor, ‘Welfare Propositions of Economics and Interpersonal Comparisons of Utility’ (1939) 49 Econ. J 549; J Hicks, ‘The Foundations of Welfare Economics’ (1939) 49 Econ J 696; J Hicks, Value and Capital (Oxford, Clarendon Press, 1946).

118Christman, n 11 above, 100.

119T de Scitovsky, ‘A Note on Welfare propositions in Economics’ (1941) 9 Rev ES 77.

120It is not within the scope of this thesis to change or even fully explain the assumptions of welfare economics. For an account of this see J Coleman, Markets, Morals and the Law (Cambridge, Cambridge University Press, 1988); Also, AM Feldman, Welfare Economics and Social Choice Theory (London, Nijhoff, 1980).

121The following conditions are taken from Christman, n 11 above, 32. These conditions are generally taken to underpin any theory of welfare economics. See CE Ferguson and JP Gould, Microeconomic Theory 4th edn (Homewood, Illinois, RD Irvin, 1975) 222–5. Also Coleman, n 120 above, ch 10.

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transactions are assumed to be costless and any rights obtained thereby can be costlessly enforced. There should be unobstructed entry and exit into the market. Finally, there must be full information: all economic agents must possess full and perfect knowledge. According to direct theorems of welfare economics, under these conditions trade will reach an equilibrium; an equilibrium that can be reached from any starting point.122

It is possible to take issue with a number, if not all, of the assumptions central to the economic justification of private property. First, it assumes too much about how rational people behave. Secondly, economic assumptions about what is morally worthwhile are highly questionable. Finally, there are internal inconsistencies with economic approaches. These include problems with assumptions made about the operation of the free market and the link between private property and efficiency. These are considered in turn.

The economic approach is predicated on rational choice theory, which assumes that individuals make choices that are consistent and predictable and that generally have the effect of maximising their preferences through choice-based mechanisms.123 Economists generally admit that there may be variations from the outcomes predicted, but generally account for them according to other non-rationality hypotheses so as to preserve the core assumption of rational choice. However, there are a number of important limitations to rational choice theory. First, rational choice strategies are not always formulated.124 This means that the outcomes that rational choice theory predicts do not always follow. One factor causing this has been labelled the status quo bias, which demonstrates that individuals are predisposed in their choices to what is habitual.125 Another important deviation from rational choice theory occurs when the individuals perceive the rational choice outcome as violating widely accepted norms of fairness.126 A second limitation arises from situations involving uncertain

122As all trades are voluntary and rationally informed (which suggests that individuals will act to better themselves) then all trades will manifest Pareto superior moves, leading to an equilibrium that is Pareto optimal.

123See TS Ulen, ‘Rational Choice Theory in Law and Economics’ in B Bouckaert and G De Geest (eds), Encyclopedia of Law and Economics (Cheltenham, Edward Elgar, 2001) 790, 791.

124TS Ulen, ‘Rationale Choice Theory and the Economic Analysis of Law’ (1994) 19 Law and Social Inquiry 487.

125See R Thaler, The Winner’s Curse. Paradoxes and Anomalies of Economic Life (Princeton, New Jersey, Princeton University Press, 1992); R Korobkin, ‘Policymaking and the Offer/ Ask Price Gap: Toward a Theory of Efficient Entitlement Allocation’ (1994) 46 Stan LR 663.

126J Andreoni, ‘Why Free Ride? Strategies and Learning in Public Goods Experiments’ (1998) 38 JP Econ 291; G Marwell and R Ames, ‘Economists Free Ride, Does Anyone Else?’ (1981) 15 JP Econ 295; W Guth, R Scmittberger and B Schwarze, ‘An Experimental Analysis of Ultimatum Bargaining’ (1982) 3 Journal of Economic Behaviour and Organization 367; D Kahneman, J Knetsch and R Thaler, ‘Fairness as a Constraint on Profit Seeking: Entitlement in the Market’ (1986) 76 American Economic Review 728. The experiments reported show a strong tendency towards equity and fairness. This may be approximating a position something like the one Rawls predicted would happen behind the veil of ignorance. J Rawls, A Theory of Justice (Oxford, Clarendon Press, 1972) 139.

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outcomes. Where individuals are required to make choices involving unpredictable outcomes, for example, placing values on lottery tickets with different win probabilities, then they have been shown to act at odds with rational choice theory.127 Deviations are also likely to occur as a consequence of cognitive limitations that impair their ability to make fully supported rational choices. A related criticism of the economic approach is that it is ex ante. By ex ante one means that it focuses on incentives and expectations about the future. Individuals are expected to maximise their preferences and this is done on the basis of future and uncertain events. What may ex ante be efficient, can turn out to be ex post inefficient. In this sense economic approaches are at odds with orthodox legal approaches that rely heavily on past events as a guide to future conduct and therefore based on untested assumptions about ‘preferences’ which in turn must be tested by experience. The point is not to suggest that rational choice theory is redundant, but to warn against sanguine acceptance that entitlements will flow to their highest value use; although rational choice theory is plausible this is not to say that it is absolutely verifiable and we should remain sceptical about uncritical assertions derived from it.

The second issue is whether or not economic assumptions about value hold true. At the heart of the economic justification of property is a belief that economic forces and values should have a primacy in a decisionmaking process. A number of assumptions come together at this point. First, the assumption that economic values such as preference maximisation and efficiency are worthwhile moral goals. Second, the assumption that concepts of value are the only factors worth measuring. Third, the assumption that other factors can be reduced to economic variables of value for the purpose of ranking. Fourth, that things can be valued for the purposes of economic modelling. All these assumptions are open to criticism.

If economic values are not legitimate moral goals, then no matter what the particular merits of efficiency, it cannot be used to justify property rights. According to most economic theories, persons are taken to be rational self-interested preference-maximisers.128 However, there appears to be little evidence proving that people become happier when their desires, beyond their basic wants, are satisfied.129 The work of Hayek is worth noting at this point for his strong defence of private property and the free market system, and, more importantly, his challenge to social justice—or

127S Lichtenstein and P Slovic, ‘Reversals of Behaviour between Bids and Choices in Gambling Decisions’ (1971) 89 Journal of Experimental Psychology 46; R Thaler, n 125 above.

128See Rose, n 109 above, 27–30. Also NP Barry, The New Right (London, Croom Helm, 1987) 34–5.

129Kant was among the first to state that satisfaction of desires does result in happiness or contentment. See R Dworkin, ‘Is Wealth a Value?’ (1980) 9 JLS 191. Also B Argyle, The Philosophy of Happiness (London, UCL Press, 1987) 142–4 and 207–8.

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distributive justice.130 Hayek depicts society as a whole as a spontaneous order, a form of human order that has evolved rules and guiding principles through the mutual interaction of humankind over the centuries.131 The institution of private property is one that has become necessary within this spontaneous order. It has become so because it allows owners of property to pursue their desires.132 It allows them freedom of choice and it creates a predicable situation within which the owner may plan and carry out his desires. Although such a situation could be achieved through an alternative system of property administered by law, private property has the advantage of allowing for the individual initiative so essential to spontaneous order. It is important to note then that private property is not logically essential. Rather historical experience merely shows it to be so. This suggests that a variety of different property institutions may evolve if the need arises and the circumstances allow. Also, Hayek does not establish that economic goals are singularly important and it is possible to use his reasoning against him to show that across time private property/economic goals have not been the single nor overarching societal goals.

Even if it is conceded that wealth is a morally desirable goal, it must be remembered that there are other values which do not fit into the economist’s model. As Adam Smith pointed out, people do not always act out of economic self-interest.133 People may be motivated by things such as love, dignity and respect.134 Frequently, these values take explicit priority over economic values. By way of example, Gillespie notes that in early American environmental cases it was held that cost–benefit analysis could not be used to make a decision concerning endangered species.135 Conservation was predicated on values such as aesthetic quality or cultural and educational value, rather than cost.136 In the same way that questions have been posed

130See FA Hayek, The Mirage of Social Justice (London, Routledge and Kegan Paul, 1982). Also FA Hayek, Rules and Order (London, Routledge and Kegan Paul, 1982).

131Hayek, Ibid ch 2.

132In this sense Hayek is quite utilitarian and he readily admits that men wish to have wealth at their disposal and that they are generally predisposed towards wealth enhancement, as a form of preference maximisation. See Flanagan, in Parel and Flanagan, n 105 above, 342.

133A Smith, The Theory of Moral Sentiments, DD Raphael and AL Macfie (eds) (Oxford, Clarendon Press, 1976) s 1.

134Ibid. Also J O’Neil, Ecology, Policy and Politics: Human Well-Being and the Natural World

(London, Routledge, 1993) 118 ff. Baker notes that monetary values cannot account for integrative values such as honour, respect and reverence that refer not to individual desires but to feelings orientated in other fields of commitment. CE Baker, ‘The Ideology of the Economic Analysis of Law’ (1975) 5 Philosophy and Public Affairs 3, 35.

135A Gillespie, International environmental law, policy and ethics (Oxford, Oxford University Press, 2000) 39. He refers to the US courts’ consideration of the Endangered Species Act in Hill

vTVA 549 F 2d 1064, 1074, where the court held that ‘[e]conomic exigencies … do not grant courts a licence to rewrite statute, no matter how desirable the purpose or result might be’.

136Gillespie, Ibid 40.

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about economic values generally, questions can be asked of the goal of efficiency. There seems to be general agreement that efficiency should not dictate morality, although it may have a role to play in how we bring about our moral goals once they have been determined. As Posner admits, ‘more efficient is not a synonym for better’.137 Carter points out that society has to care for its old and unproductive people and it does so by placing them in care. Of course, a more efficient way of dealing with them would be to kill them.138 Clearly, this is not acceptable according to the wider values and rules of every society, and the point is made that efficiency does not pre-empt other moral ends.139 A further problem arises because efficiency tallies votes based on each consumer’s willingness to pay. As a result it overemphasises the preferences of the wealthy, who can pay more, and underemphasises the preferences of the poor.140 Economists respond to such criticisms by claiming that other values can be reduced to economic values and so taken into account. They regard other values as personal preferences best revealed and satisfied through market mechanisms.141 However, when they attempt to reduce ethical, political and social values down to simple monetary terms they are guilty of making a category mistake.142 They try to describe something in terms that simply don’t apply to it. As Dowdeswell asks: ‘Can we price the value of the pristine mountains, the beauty of the sunset, the sound of the swirling brook?’143 Such values cannot be converted into economic terms. If this point is ignored and economic values are misapplied then undesirable consequences could follow.144 For example, environmental resources that are perceived of as harmful or fulfilling no economic purpose, or have no aesthetic, cultural or

137R Posner, ‘Economic Justice and the Economist’ (1973) 33 Public Interest 109, 113.

138Carter, n 16 above, 75.

139As Ogus notes: ‘efficient solutions are not always just solutions’: AI Ogus, ‘Economics, Liberty and the Common Law’ (1980) 15 Journal of the Society of Public Teachers of Law 42,

53.He uses the example of a factory producing essential goods, but causing a nuisance to an adjacent private dwelling. Assuming that it is cheaper for the private resident to install double-glazing than it is for the factory owner to do so, then the most efficient recourse is for the private resident to provide double-glazing. Yet the question remains, why should the private resident pay for the factory owner’s problem?

140DA Farber, ‘From Plastic Trees to Arrow’s Theorem’ (1986) University of Illinois Law Review 337, 354–5

141See D Kennedy, ‘Cost-Benefit Analysis of Entitlement Problems: A Critique’ (1981) 33

Stan LR 387.

142M Sagoff, The Economy of the Earth: Philosophy, Law and the Environment (Cambridge, Cambridge University Press, 1988) 94.

143E Dowdeswell, Speech at the World Summit on Social Development, UNEP 1995/3.17. Cited in Gillespie, n 135 above, 40. See also A Gore, Earth in Balance: Forging a New Common Purpose (New York, Plume, 1992) 190–1.

144Such consequences might include slavery, child labour, and the destruction of places of cultural value. Unless non-monetary values are recognised as part of a decision making process then it may be difficult to deny morally repugnant yet efficient practices. See Gillespie, n 135 above, 41.

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recreational value could be destroyed or replaced without consequence.145 Similarly, if economic logic were to guide resource policy then it would become acceptable to replace less valued resources with higher valued resources. Apart from any moral objections this raises important concerns about biodiversity. As we will show in chapter 6, scientific understanding of ecological context and the consequences of resource consumption are driving the regulation of natural resources in new ways to ensure that certain goods and values that transcend the individual natural resource are protected. It is also clear that the point about skewed preferences remains. Simply put, economists have failed to explain how and why other values can or should be reduced to monetary values.146

The last set of criticisms concerns the internal coherence of economic approaches. First, the link between private property and efficiency is questionable. An initial difficulty is that exponents of the tragedy of the commons approach presuppose private property to exist. As Carter notes, it is the private ownership of the cows that poses a problem, for if they were not individually owned then there would be no incentive to increase grazing effort.147 It is not private property that solves the tragedy of the commons, but the introduction of adequate control over the resource use. Control does not have to be in the form of private property, although it may be the most efficient means of exercising control. Thus, economic theory conflates the absence of individual ownership rights with the absence of individual duties of care, and as long as the latter exist and are enforced then common property is well cared for.148 In Demetz’s terms all that is required is to make the people who produce the externalities responsible for them. It does not follow that private property rights are the only way of achieving this.

Secondly, there is a questionable linkage between private property institutions and the free market, with the assumption that private property entails a free market, which in turn leads to the most efficient allocation of resources. This linkage is problematic for a number of reasons. In the first place, individuals are considered to be rationally self-interested preference maximisers. This questionable motivation leads them to trade goods in order to increase their wealth.149 In the second place, there is

145See A Leopold, A Sand County Almanac (Oxford, Oxford University Press, 1949) 210 ff.

146There is a large body of literature on this point. See M Sagoff, ‘Reason and Rationality in Environmental Law’ (1987) 5 Ecology Law Quarterly 265, 272; M Jacobs, The Green Economy: Environment, Sustainable Development and the Politics of the Future (London, Pluto, 1991); P Soderbaum, ‘Neoclassical and Institutional Approaches to Environmental Economics’ (1991) 24 Journal of Environmental Informatics 481. There are parallels in other areas where, eg, it is denied that wealth should have anything to do with policy influence. If it was a measure of a person’s values then it would lead to disenfranchisement.

147Carter, n 16 above, 68.

148Becker uses the example of a public library to illustrate this point: n 9 above, 62–3.

149Notes 123–127 above, and the accompanying text. See also n 116 above.

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a clear difference between having the right to do something, which the traditional model of liberal ownership provides, and the incentive that a person has to do it, which free market theory presupposes.150

There are a number of other attacks that can be made upon the free market model. First, the assumption that free markets exist is unrealistic. Most if not all economies are mixed and are to a large degree imperfect.151 Therefore the allocation of resources will not be as efficient as assumed. Secondly, markets operate in a real world environment, which inevitably places obstacles in the way of free trade, for example mountain ranges and technological restrictions. These impediments may distort market allocation of resources. The assumption is made that these factors are exogenous and unalterable by individuals, but this does not hold true, because governments may seek to overcome the obstacles. This involves some degree of intervention and so undermines that notion that only private interest motivates market behaviour. Thirdly, there is the assumption that trade is non-tuistic—that it is not done to benefit the welfare of the trading partner. People do trade in a way that is mutually beneficial, which again runs counter to assumptions about actors in the market. Finally, there are more obvious complaints about market assumptions. These include economic disutilities arising from monopolies and oligopolies, which distort the allocation of resources. In short, crucial assumption about the operation of the market are made which do not hold true in practice, rendering the claim that property rights are more efficient inconclusive.

(e) Property as Propriety

A much neglected and unarticulated justification of property is propriety.152 According to this approach, property law exists so as to accord to each person or entity that which is proper or appropriate.153 Property is a key element in the structuring of society and part of a

150Christman, n 11 above, 39.

151Economists may reply that it is only a model and that it serves to illustrate potential economic effects and variables, and that it is not meant to be normative in the sense that this is how things should be. However, the point made is that when all the assumptions are laid bare then many of the consequences of the economic approach to property rights simply do not hold out.

152There has always been some terminological confusion with these terms. Professor Pocock notes that from Rome to Locke ‘“property”—that which you owned and “propriety”—that which pertained or was proper to a person or situation—were interchangeable terms’. JGA Pocock, ‘Mobility of Property’, in A Parel and T Flanagan, n 105 above, 141, at 142.

153As Rose puts it: ‘Property in this world “properly” consisted in whatever resources one needed to do one’s part in keeping good order; and the normal understanding of order was indeed hierarchy—in the family, in the immediate community, in the larger society and commonwealth, in the natural world, and in the relation between natural and spiritual worlds’. Rose, n 109 above, 59.

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system of governance. Thus for Aristotle, the citizen was possessed of property in order to be autonomous, which was necessary for him to function properly as an agent of society.154 For Bodin, property was a fundamental constraint on the power of the monarchy. It was essential for the maintenance and ordering of families, which were in turn necessary constituent parts of society.155 The principal focus of property in this tradition was land, with the responsibility and privilege that it carried. Land was considered as a special case because the powers and privileges that went with it had a much greater effect on other people’s ability to survive than moveable or consumable property. The most important point is that property carried with it some measure of governing authority, and that this authority had definite hierarchical characteristics.156

What property in this sense boils down to is the idea that certain property holdings and land in particular carry with them a responsibility to the wider community, or perhaps that collective interests may take priority over private interests. This is evident in a number of contemporary property situations, for example American takings law, and it also infuses property more generally.157 Thus it is still the case that ownership of my home allows me space to shelter and nurture my family, or that ownership of a business allows the entrepreneur the opportunity to employ workers and provide an economic service. Ownership of my home is proper to me in my capacity as member of a family and ownership of a factory is proper to the businessman. These aspects of property are closely related to the above historical antecedents, but what is interesting about the contemporary manifestations of property as propriety is that the ordering function of property is no longer exclusively regarded as an internal function of the property right. The property owner is no longer expected to carry out a ‘trusteeship’ function. This factor appears to have been usurped by the State, or exists as an external constraint on the use of the property.158 This is perhaps

154Aristotle, n 98 above, § 1263.

155J Bodin, Six Bookes of a Commonweale, a facsimile reprint of the English translation of 1606 by R Knolles (ed) intro by KD McRae (Cambridge, Massachusetts, Harvard University Press, 1962) 11–12, 110–11, noted in Rose, n 109 above, 59.

156Rose, Ibid 59; Also CM Rose, ‘Empires and Territories at the End of the Old Reich’, in JA Vaan and SW Rowan (eds), The Old Reich: Essays on German Political Institutions, 1495–1806

(Bruxelles, Éditions de la Librairie Encyclopédique, 1974) 61 ff.

157Rose, n 109 above, 64. Takings law is concerned with the legitimacy of government regulations that have the effect of depriving property owners of some or all of the benefits of their property, and related issues of compensation.

158Rose casts property as propriety as a weaker idea: Ibid 64. This is presumably because property is now a lesser part of an ordering system, which includes government and law, whereas historically property was a much more central part of the regime of government.

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explicable on grounds of modern democratic theory, or according to the argument that the individual cannot always be expected to act in the public interest when it conflicts with his private interest, thus necessitating and externalisation of the trusteeship function.159

At this point it is worth considering two related areas where property as propriety is manifest: the public trust doctrine and contemporary notions of stewardship.160 In both cases important public policy considerations about resource use, which flow from conceptions of good order, determine the shape of particular constellations of property rights. Although it may be difficult to pin a justification of property to a concept as nebulous as good order, it is possible to point to certain widely accepted or entrenched political and legal values as evidence of what amounts to good order.161 The conception of good order referred to here includes certain environmental goals.

American public trust doctrine has its roots in Roman law and the idea that certain resources such as air, running water and the sea were incapable of ownership. This continued into English law, and, after independence, evolved into a sophisticated form of public ownership in the US.162 Public trust has two significant features. First, it is inalienable.163 Secondly, it provides the State government with the continuing responsibility for the stewardship of the resource. This means that resources cannot be used in a way that would violate the interest protected by the public trust.164 Public trust doctrine occupies a secure place within American jurisprudence, and has been used to regulate a number of resources, including public spaces, the environment and fisheries.165 In essence the public trust is a proprietary interest of the State that ensures that certain resources, in which there is a public interest, are used in a way that benefits the community, or are not used to the detriment of the community. It is property with special responsibility.

159Hypothetically, such a choice could be made under the veil of ignorance as suggested by Rawls, but of course in reality a decision by the owner in the public interest cannot be guaranteed.

160Stewardship is considered in more detail in chapter 5, section 5.

161See further ch 3, s 2(b) below.

162This line of reasoning is evident in the work of Henry de Bracton: H de Bracton, On the Laws and Customs of England, GF Woodine (ed) (Cambridge, Massachusetts, Harvard University Press, 1968) 39–40.

163In the leading case of Illinois Central Railroad v Illinois 146 US 384 (1982), the US Supreme Court held that a legislative grant of a waterfront property to a private company was necessarily revocable as certain public trust property could not be placed entirely beyond the direction and control of the State.

164See JL Sax, ‘The public trust doctrine in natural resource law: Effective judicial intervention’ (1970) 68 Michigan Law Review 471; Cf R Delgado, ‘Our Better Natures: A Revisionist View of Joseph Sax’s Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform’ (1991) 44 Vanderbilt Law Review 1209.

165See further, ch 8, s 3(e).

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Similarly, stewardship seeks to ensure that certain resources are used in a manner which does not override community interests in the resource. The result is that the steward is subject to certain overriding duties in respect of the resource. These typically involve conservation and management duties but may also include facilitating shared use and enjoyment of a resource. In terms of propriety, the assumption could be made that unless certain resources are used in such a manner, then at best undesirable conflicts may arise and at worst more serious social disorder is precipitated. Thus stewardship, like other property holdings, has an ordering function which reflects the high degree of interest a community has in a particular resource.

If one accepts that property is directed at achieving some form of order then an account of property derived from propriety is not too problematic. Indeed, most commentators would agree that property has this basic ordering function. However, difficulties arise when we move from an abstract idea of order to what may be termed proper order. When an account of property tells us what form and amount of property is proper for a person, it stops being a mere description of what happens and becomes a normative account of how society should be ordered. At this point property as propriety must presuppose the existence of a particular form of order or social structure. This is problematic. For example, in older accounts of property in this tradition the order advocated does not conform to what we now regard as decent or fair, ie feudalism. Property reflected an established order, a hierarchy, and so tended to preserve the status quo between the haves and have-nots.166 Of course one could reject the ‘unequal’ or illiberal dispersal of property that was prevalent under this view, and substitute a version of ordering that is democratically acceptable. However, the point remains that this version of property depends on an account of how society should be ordered, and this is no easy task.

A second problem with this approach is that it presumes that a comprehensive account of social order can be formulated, according to which the allocation of resources can be measured. As Hayek and von Mises point out in respect of non-market economies, although this degree of planning is theoretically possible, it is not a practical prospect.167 Indeed, experience tells us that attempts at deliberative social order are doomed to failure. Alternatively, an account of property based on a vision of proper social order runs the risk of ending up as totalitarianism, or, at the very

166Critics of ‘modern republicanism’ include R Epstein, ‘Modern Republicanism—or The Flight from Substance’ (1988) 97 Yale Law Journal 1633, 1635. Also M Tushnet ‘The Concept of Tradition in Constitutional Historiography’ (1987) 29 William and Mary Law Review 93, 96 ff.

167FA Hayek, ‘The Nature and History of the Problem’ in FA Hayek (ed), Collectivist Economic Planning: critical studies on the possibilities of socialism, (London, Routledge, 1935) 1; L von Mises, ‘Economic Calculation and the Socialist Commonwealth’ in Hayek, Ibid 87–110.

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least, would be open to claims of authoritarianism. Moreover it might necessitate infringing generally accepted rights and freedoms, such as the liberty to dispose of one’s possessions freely.168

If a comprehensive account of propriety is a practical impossibility what is left of accounts of property derived from propriety? There are three possibilities in this respect: first, that propriety merely justifies property in those things necessary to survive; secondly, that propriety justifies those holdings necessary to facilitate a person’s participation in social order; and thirdly, that it provides a corrective or rectifying function that ensures uses of certain resources do not run counter to social order.

Under what may be termed minimal propriety it is recognised that certain things are essential to human survival: shelter, food, clothing and a sound environment. It may be that hunger, homelessness and so on run counter to a version of good order, or that these failings will result in instability and disorder. Either way it is assumed that any satisfactory form of social order must first provide for basic human needs. This may be understood positively, in the sense that certain property holdings must be provided for, or negatively, in the sense that accumulations of property that prevent others satisfying their needs are not permitted. In some form this minimal ordering function of a property system is recognised in most, if not all, accounts of property. Certainly, international law entertains basic welfarist provisions.169 The problem is that under this version of property all that is proper for a person is that which is necessary to survive. Above and beyond this point the theory has nothing to say about further accumulations of property, inequality of holdings and harmful uses of property. Accordingly, it would need to be supplemented by another property justification that explains how greater or more sophisticated holdings are determined and structured. It is worth highlighting that propriety in this sense does not justify merely private property. As long as certain minimal needs are satisfied then it does not matter how this happens. Accordingly, it could justify collective forms of holding, or even a system of charitable entitlements to those incapable of furnishing their basic needs.

Under the second version of propriety a person is entitled to those things necessary to ensure that they can properly participate in society. This version of propriety goes beyond the first in that it requires a form of organisation that recognises individuals’ capacity for rational

168Of course one could suggest that the proper form of order is a liberal free market society. If this is so then property as propriety loses its normative resonance and becomes a mere apology for a market economy.

169See Art 11 of the International Covenant on Economic, Social and Cultural Rights 993 UNTS 3, which obliges States to ensure an adequate standard of living for their people. However, as Alston notes, this right has been violated ‘more comprehensively and systematically than probably any other right’: P Alston, ‘International Law and the Human Right to Food’ in P Alston and K Tomasevski (eds), The Right to Food (Boston, Nijhoff, 1984) 9.

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thought, self-reflection, control and desire formation. It must then allow for a degree of control over material things necessary to allow a person to service their interests as formulated. In this respect it closely parallels or amounts to a version of property based on autonomy according to liberty based arguments for property.170 What is being put forward distinctly is the claim that good or proper order is based on an ideal of individual autonomy. Again this version of propriety does not automatically entail private property rights, although some private property may be necessary to fulfil one’s desires. For example, if my goals are to pursue spiritual enlightenment through monastic reflection, then this might only be achievable through the giving up of personal possessions and participating in some form of communal ownership of daily necessities and the means of their production. Neither does it support a claim that I must own or control all those things necessary to the fulfilment of my desires. Our goals must be realised through action and there may be physical, legal, economic, and social limits that restrict the way in which we can control things. Autonomy in this sense ensures opportunities and the capacity to obtain control over things. It does not require it. Clearly certain goals cannot be reconciled with the interests of society, such as vast accumulations of wealth or exclusive control over natural resources that would disenfranchise others. Most versions of autonomy would argue that only certain arrangements and activities are valid goals.

Finally, under what may be termed object propriety, it is recognised that certain things have a direct bearing on society’s ability to function.171 This capacity flows from the inherent nature of the thing. Accordingly, where the use of property threatens or destabilises good order, centrally or collectively determined uses of property must be imposed.172 Under such a view certain things are deemed to be critical to social order. Typically this would include, inter alia, land and other factors of production, such as the oceans or airspace.173 Untrammelled ownership of such things may

170Some accounts of autonomy start from the position of self ownership, which is then projected into things. See generally, TM Knox, Hegel’s Philosophy of Right (Oxford, Oxford University Press, 1952) §§ 41–77. A useful summary of this is provided by Munzer, n 20 above, ch 4. See also J Raz, The Morality of Freedom (Oxford, Clarendon Press, 1986) 369 ff; G Dworkin, Theory and Practice of Autonomy (Cambridge, Cambridge University Press, 1988) ch 1; J Christman, ‘Autonomy and Personal History’ (1991) 21 Canadian Journal of Philosophy 1.

171This reflects the point made in ch 1: that the physical characteristic of a thing affects the form of ownership capable of being applied to it.

172This view of property is reflected in Underkuffler’s second conception of property— ‘operative property’. This view of property permits ‘collective definition, redefinition, control, and change’ of property, rather than protect some fixed view of property: Underkuffler, n 22 above, 46–51. See further, ch 3, s 2(b)(i).

173Indeed it could extend to other proprietary interests such as gold reserves and control of the supply of money in an economy.

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affect society’s ability to guarantee the general well-being by ensuring the production of food or preventing environmental degradation. Thus, a farmer owns land because ownership is necessary to allow him to harvest it productively free from trespass. Yet such ownership may also include an obligation to ensure its productive use and the supply of certain products into the marketplace free from certain harmful pesticides. According to this version of propriety, property is not merely about certain minimum entitlements, it also involves more sophisticated responsibilities, and questions about who must give effect to these (either the individual through use conditions or the State through regulatory controls). As noted above, this begs difficult questions about the content or aims of such good order. However, it is not necessary to engage in a potentially futile, or at least highly contestable, debate about the utopian meaning of ‘good order’; it is only necessary to accept that such interests must be substantively constrained. They must have an operative existence within society. Thus one can properly have recourse to public interests, such as rules on environmental protection, as articulated in law, to determine limits on property.174 These interests are discussed in more detail in the next chapter.

Two final points may be added. First, this account of property does not provide a universal justification of property. Rather it seeks to explain property rights in certain resources. For example, propriety may have little to say about property rights in socially unimportant things such as one’s pen or book. Property in such things may require explanation on other grounds.175 Secondly, just as the above variations of property may result in alternative forms of property, so too this version cannot claim to support private property rights exclusively. The form of ownership should respond to the needs of society. Thus stewardship and common property are just as likely to be required by propriety as is private property.

(f) Property and Pluralism

Advocates of pluralism claim that property can only be properly understood by reference to a number of separate and irreducible principles.176

174As Underkuffler states ‘It is those commonly understood and real constraints that provide the ‘great common ground’ for societal understandings of the nature of claimed rights and competing public interests, and that are necessary for a meaningful discussion about them’: n 22 above, 82.

175The point is that ownership of my pen will have little direct bearing on matters of social order.

176Thus Munzer argues that the lack of answers to important questions such as how to rank moral principles and evaluate the consequences of moral decision-making renders pluralism necessary: n 20 above, 9. For Rose property is pluralistic because it can be understood in

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Apart from the absence of a single unifying account of the justification of property, pluralism is attractive because it both recognises the complexity of property institutions and is inclusive of the variety of moral values that underpin social institutions such as property. Indeed, in any question of resource use a number of different justifications will be put forward in order to make a case for or against a particular form and allocation of property rights. A number of justifications were shown above to have a high degree of logical and narrative plausibility.177 These include a version of property from labour when supplemented by desert and a qualified version of the liberty justification, where limits are applied to ensure that certain basic needs are met, remain plausible. Utilitarian and economic approaches can be reduced to an account of property based upon preference maximisation, and, although certain criticisms were levelled at such approaches, these were targeted at assumptions made about the operation of markets, the limited focus on private property at the expense of other forms of property and the prioritisation of economic values, rather than the objective of maximising preferences. Lastly, an account of property as propriety was shown to hold true if merely by virtue of the inherent ordering function of property. Although no particular form of order was advocated, there is evidence of increasing controls on property to ensure that certain things are properly stewarded.

As we noted above, although these approaches are not free from criticism, they remain persuasive and help explain contemporary institutions of property. The question then is not about their general acceptability, but rather how to reconcile these different approaches because it is highly likely that different justifications will require different outcomes. For example, utility may require a certain type of property that would run counter to liberty.178 In such situations of conflict what is important is that such conflict can be resolved—or rather the various justifications coordinated.179 Once this is achieved then it is important to ensure that specific

terms of preference satisfaction and propriety. She admits that preference satisfaction informs our property practice, but the pluralism comes instead from the traditional understanding of property as ‘propriety’ and its ‘constant albeit ill-articulated intrusions’: Rose, n 109 above, 51–52

177Becker holds that two accounts of property from labour (one supplemented by desert), one account derived from utility, and one from liberty hold true. These should be encompassed within a pluralist account of property: n 9 above, 99. Munzer argues that property is to be understood according to the three principles: the principle of utility and efficiency, the principle of justice and equality, and the principle of desert based upon labour: n 20 above, 3.

178Liberty might conflict with preference maximisation when a State restricts transfers of ownership in the free market to ensure that resources are kept in the hands of certain persons in order to protect community or cultural values, eg works of art or subsistence fisheries.

179Becker, n 9 above, 103.

Justifications of Property 57

sorts of property are compatible with the accepted general justifications of property.180

Becker suggests three possible means of coordinating property justifications: by aggregation, by ranking and by arbitrary means.181 Of these, arbitrary coordination can be discounted as morally, politically and legally unsound. Aggregation provides in cases of conflict that a specific justification of property is determined by the prevailing majority of justifications. This is done on the basis that each justification has equal weighting. For example, if utility, labour and propriety support a specific property right and liberty argument prohibits it, the three outweigh the one, and the specific right is justified. Of course all this proceeds on the basis that each justification can be given equal weighting, and, indeed, that interpersonal calculations are possible. Superficially, coordination may seem compelling, but in reality it is the equivalent of reducing numerical factors to common denominators in order to assimilate those factors. This simply will not do. One cannot simply assert that any justification from liberty has the same weighting as a justification from utility and so on. Becker follows this approach as a position of last resort because neither liberty nor utility justifications have succeeded in achieving dominance over each other.182

An alternative approach to the problem is taken by Munzer, who relies upon intuitionism to deduce how to decide potentially opposite justifications of property.183 Intuitionism is the idea that certain moral judgements and opinions are made according to a person’s considered understanding of a situation.184 Accordingly, we are ‘simply to strike a balance by intuition, by what seems to us most nearly right’.185 The principal advantage of this approach to property is that it is reflects the fact the decisions about property are political decisions, which are not necessarily closed according to any overarching moral code.186 The main attack on intuitionism comes from utility, where a single, standard test of value is adopted.187 However, Munzer counters this by arguing that is impossible to construct

180Ibid 107.

181Ibid 104.

182Even for Becker this is simply a presumption: n 42 above, 105.

183See Munzer, n 20 above, ch 1.

184On intuition see GE Moore, Principia Ethica (Cambridge, Cambridge University Press, 1903); B Barry, Political Argument (London, Routledge and Kegan Paul, 1965); T Nagel, Mortal Questions (Cambridge, Cambridge University Press, 1979) 128 ff.

185Rawls, n 126 above, 34.

186According to Rawls, whom Munzer relies upon, intuitionist theories have two features: ‘first, they consist of a plurality of first principles which may conflict to give contrary directives in particular types of cases; and second, they include no explicit method, no priority rules, for weighing these principles against one another.’: Rawls, n 126 above, 34.

187See, eg, R Hare, Moral Thinking: Its Levels, Method and Point (Oxford, Clarendon Press,

1981).

58 The Private Function of Property

any moral theory without intuition, and he points out that even Hare, a utilitarian critic of intuitionism, proceeds according to the intuition ‘that probable effects on preference satisfaction are relevant features of actions’.188 Munzer presents a qualified account of intuition in order to avoid collapsing into wholesale subjectivity. He accepts intuitions only after they have been subjected to some ‘procedure for eliminating intuitions that are apt to depend on bias, prejudice, class associations, or poor empirical information’.189 Thus some judgements should be disregarded on grounds of faulty or distorted reasoning.

Munzer’s use of intuitionism provides a more satisfactory explanation of pluralism than Becker’s, although the approaches are by no means incompatible. It is preferable because it does not provide an absolute and static account of property. Intuition does not adhere to a fixed set of moral priorities and so explains how property has changed over time according to changes in the underlying moral values. It is also consistent with the fact that various justifications remain persuasive and are frequently recast in contemporary debates about the design of resource systems and the allocation of resources. Munzer’s qualified intuition produces three fundamental principles: the principle of utility and efficiency, the principle of justice and equality, and the principle of desert based upon labour.190

The principle of utility and efficiency aims at ‘maximising preference satisfaction’.191 Efficiency is regarded as welfare maximisation, which can also be understood as individual preference maximisation.192 The combined principles require that property rights should be allocated ‘so as (1) to maximise utility regarding use, possession, transfer and so on of things and (2) to maximise efficiency regarding the use, possession, transfer and so on of things.’193 It is important to note that, as well as supporting private property, such as clothes, furniture and other personal items, this principle also supports public property such as military resources, schools and hospitals.194 Therefore it does not automatically commit one to an absolute regime of private property.195 Neither does it commit one to a capitalist economy (one where private ownership of

188Munzer, n 20 above, 11.

189Munzer, n 20 above, 10. A final caveat is entered by Munzer—as his is an account from intuition it does not claim to be a right answer.

190These are consistent with those justifications that retain a degree of normative plausibility noted above.

191Ibid, p196; J Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford, Clarendon Press, 1986).

192Munzer, n 20 above, 198.

193Ibid 202. He goes on to note how these two may be ranked according to how they have differing ordinal and cardinal capacities, but this is not necessary for the present review.

194Ibid 206. This is based on plausible assumptions about what people want—security, education and a basic welfare safety net.

195Ibid 207. That said he is flexible as regards the balance between public and private, and notes that this will be contingent on political choices.

Justifications of Property 59

the means of production is justified); it merely permits the possibility.196 It also favours a moderately equal distribution of property. This is based upon notions of diminishing marginal utility and recognition that wide differences in wealth may produce preference dissatisfaction.197 Munzer acknowledges the conflict that may arise in respect of property rights and notions of utility and efficiency.198 This is of course avoided by the fact that his theory is pluralist, and so he can claim that considerations of utility and efficiency can never be sufficiently weighty to override property rights.199

The principle of justice and equality relies on the moral position that individuals have certain morally justifiable individual advantages that cannot be sacrificed for overall utility.200 The principle recognises that certain minimal needs and capabilities exist.201 Munzer’s account is drawn from Rawls’ Theory of Justice and leads him to present the principle thus: unequal holdings of property are justifiable if everyone has certain minimum amounts of property and any inequalities do not undermine a fully human life in society.202 What is important is that this principle may temper the distributional consequences of the first principle. However, although the justice and equality principle generally takes precedence over the principle of utility and efficiency, any such conflict that might arise will be rare as most utilitarian positions are compatible with moral intuitions and considered judgements.203

196Ibid 210.

197See Munzer, n 20 above, section 5.3. The point is that huge discrepancies between the haves and haves not may result in feelings of resentment, social marginalisation and discontent.

198For example, utility and efficiency may appear to justify the taking of private property in the interests of the wider community without compensation.

199Ibid 226.

200Ibid 228.

201Ibid.

202Ibid 227.

203It is notable that Rose considers utility/efficiency, justice/equality and labour/desert to be reducible to a single ‘all powerful principle of preference satisfaction’: Rose n 110 above, 51. Rather than view justice/equality, ie the guarantee of certain minimum holdings, as imposing limits upon preference maximisation, Rose suggests that they can be understood in terms of preference satisfaction. If one accepts the concept of diminishing marginal utility of wealth, then it follows that limited transfers of wealth from rich to poor will maximise overall preferences. For example, £10 is valued more by a poor person than a millionaire, so that a transfer of £10 from the wealthy to the poor will increase the total amount of preference satisfaction. If our expectations differ from those presumed under utility theory then no disutility arises from a frustration of expectations. Rose admits that such transfers must be carefully undertaken because excessive transfers in wealth will result in disutility (See F Michelman, ‘Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law’ (1967) 80 Harvard Law Review 1165, 1222–4). Such transfers are a disutility because violations of the expectation that one will get the returns from one’s investment will discourage action by the propertied to expand the size of the pot. Rose moves to highlight that of course such disutility depends upon expectations being frustrated (at p 56). This is clearly the case because justice and equality considerations form part of our accounts of property. Therefore no demoralisation costs result from ensuring that basic needs are met or that wealth transfers take place in accordance with a widely accepted account of equality or justice.

60 The Private Function of Property

The third of Munzer’s pluralist principles is that of desert by labour.204 At its root labour is still the basis of a property right. However, this is qualified in order to make the principle acceptable, because not all forms of labour, nor the products of all labour, are appropriate objects of property. These qualifications are as follows. First, everyone has the right to life, which may require that labourers share the products of their labour. Also, necessity may demand that labourers do not allow the products of their labour to spoil or accumulate beyond their needs. Secondly, property is only allowed where the net effects of acquisition are defensible, ie they do not cause unreasonable harm or disadvantage to others. This qualification is derived from the first two principles. Thirdly, post-acquisition changes in a situation may modify previously acquired property rights. For example, property rights in food grown and harvested may be overridden by considerations of justice or utility. In one year all the rights associated with ownership accrue to a farmer, whilst the next year the event of a famine demands the distribution of food in order to feed the starving. Fourthly, transfer of property is permitted as long as it satisfies the above rules on acquisition. Fifthly, in conditions of scarcity labour may in certain times generate wages rather than property.205 Finally, because labour is a social activity and not an individual activity in the Lockean sense, a wage policy must be formulated in accordance with desert. The important thing to take from this is that under certain conditions labour may justify a property right on grounds of merit rather than value.

A number of important points are to be drawn from Munzer’s pluralist account. First, it denies that there is an objective moral truth, although it admits that some degree of moral objectivity is possible.206 Some form of modified intuition is the only means of assessing and assimilating the various justifications of property. Secondly, coherence and consistency of reasoning (in its limited or relative form), and its application in practice, is essential. This will result in undeniable limits on property rights, but also some uncertainty, which, in turn, points towards a mixed system of property with varying degrees of property rights, rather than a uniform and absolute system of property. Thirdly, it appears that some intuitive ranking of the principles is possible. This is as follows: firstly, any application of the principles must be context sensitive. Thus a decision maker must consider the way in which society regards a particular object of property because this will affect the way in which it is evaluated according to the principles. Secondly, although the first principle (utility/efficiency or preference maximisation) is the most important day to day determinant

204Munzer, n 20 above, ch 10.

205For example, a person may labour on another’s property. Or the thing laboured on may be immediately subject to a constraint in accordance with exception 3.

206Munzer, n 20 above, ch 11.

Concluding Remarks 61

of property, it is absolutely subject to the second principle (justice and equality). The third principle, however, is modified by both the first and second.

Although Munzer’s pluralist account of property does not explicitly include the justification of property based on propriety, it can be reconciled with this approach. Indeed, in a later article Munzer defends his account of property noting how the key normative aspects of a proprietybased view of property are subsumed within his ‘background theory of property’, and, in particular, in his treatment of moral character, republicanism, virtue and commercial society.207 In short, his background theory admits of the connection between property and its wider social context. Although he admits to a degree of scepticism about aspects of property as propriety and points to its underdevelopment as a normative account of property, he admits that it has scope for normative development. For present purposes, one does not need to locate propriety precisely within Munzer’s approach. It is sufficient to note that the application of propriety can be identified in practice. As noted above, propriety may shape property, but only where the form of order or principle pursued has some operative existence within a legal system. What is then essential is to determine the existence of such public interests (proprietary considerations) that limit private interests in property in practice.

4. CONCLUDING REMARKS

Property is an institution governing the use of things. More particularly it is a legal institution in the sense that law provides the basis for the definition and regulation of the regime of property, and a social institution for it provides a means to achieve social order. Property regimes have three aspects. First, there is the property right, being the bundle of entitlements that define the holder’s rights in respect of the use of a particular resource. Secondly, there is the body of property rules, being the rules under which a particular property entitlement is exercised. These two facets presuppose the existence of a third feature of a property system—a supporting legal structure.208 This is important because property rights are never purely abstract rights or economic rights; they are legal rights and are thereby infused with the values of the community that sustain the legal system.

207S Munzer, ‘The Special Case of Property Rights in Umbilical Cord Blood for Transplantation’ (1999) 51 Rutgers Law Review 493, 558–9. He further suggests that Rose and Alexander offer a primarily explanatory cum historic approach rather than a normative account of property. However, this fails to admit the normative scope of propriety.

208This is generally domestic law. However, as chs 5–7 illustrate, international law also has an important role to play in creating property rules, particularly in States’ maritime zones.

3

The Public Function of

Property Rights

Property rights serve human values. They are recognised to that end, and are limited by it.1

1. INTRODUCTION

THE EXCLUSION OF public or community interests in property discourse tends to result from the narrow focus of classical liberal theory on individual rights. As Robertson points out, classical liberal theory creates a divide between the public and private spheres of social organisation. Into this schema property rights have been located entirely within the private sphere and this tends to negate any public function that property might serve.2 Taking his lead from the seminal article by Cohen,3 Robertson attacks the notion that public and

private spheres should be conceptually distinct:

The system of property arrangements in any society has to be consciously designed to maintain a proper form of political and social order. Such an outcome cannot be left to the blind workings of private market forces alone.4

One can note the echoes this has of the account of property derived from propriety. Indeed, there is little doubt that the public aspects of property are an essential feature of most expositions of property, even in disciplines

1State v Shack 277 A 2d 369, 372 (1971).

2M Robertson, ‘Liberal, Democratic, and Socialist Approaches to the Public Dimension of Private Property’ in J McLean (ed), Property and the Constitution (Oxford, Hart Publishing, 1999) 239–42.

3M Cohen, ‘Property and Sovereignty’ (1927) 13 Cornell Law Quarterly 8. In this article he argues that dominion over things is also imperium over our fellow human beings (p 13). From this generally accepted premise he argued that, dialectically, property should be distributed with due regard to the productive needs of the community (p 17) and that it is also subject to ‘positive duties in the public interest’ (p 26).

4Robertson, n 2 above, 248.

64 The Public Function of Property Rights

that might be considered to have a stronger affinity with untrammelled property rights and the operation of the free market.5

Underlying Robertson’s argument is a belief that unconstrained private property rights pose as much of a risk to individual freedoms as does unjustified State interference. For example, the concentration of media ownership in one person’s hands may pose a risk to freedom of expression in society.6 Of course, it does not follow that just because the owner of private property has certain power over others in respect of the use of the resource he will use it in such a way as to infringe their liberty, although clearly there is a risk of such. What is crucial then is having in place adequate safeguards against such possible abuse. This is the point of exploring the public function of property.

As a prelude to this analysis, it is important to address the question why liberal theories of property marginalise the public function of property. In part it results from the emphasis on private rights as a counter to the excess of governmental authority, and certainly many liberal theories were developed at a time when individuals required protection from public encroachment by the State. In part it flows from the emphasis on individual autonomy within liberal theory. Hence individual rights enjoy a priority over community interests. Certainly this is true of liberal democracies, where respect for individual liberty is the keystone of the system of government. In part, it reflects the fact that political theory has failed to advance a sufficiently coherent and acceptable framework of public values, and certainly such accounts of the public function of property are few and far between.7 What is clear from the previous chapter is that most private liberal values are abstract, transnational values. Liberal theories tend to take political community as a given and, typically, they look no further than an abstract notion of the origin of community, rather than the actual origins and development of particular communities.8 This point is crucial because one cannot ignore the fact that individuals and their rights are located within political communities. As such, providing an account of the public function of property becomes vital because it serves to locate

5Thus, Fiss comments on the distortion of democratic functioning caused by concentrations of private wealth. O Fiss, ‘Money and Politics’ (1997) 97 Columbia Law Review 2470. A number of commentators, taking their cue from Marx, have noted the important public role of private corporations, and their capacity to exercise de facto sovereign powers in respect of their economic activities. See PI Blumberg, ‘The Politicalization of the Corporation’ (1971) 26 Business Lawyer 1551; D Vogel, ‘The Corporation as Government’ (1975) 8 Polity 5; C Lindblom, Politics and Markets: The World’s Political Economic System (New York, Basic Books, 1977) 17; B Fisse, ‘Corporations, Crime and Accountability’ (1995) 6 Current Issues in Criminal Justice 378.

6See, eg, Communications Act 2003 s 375.

7See ch 2, s 3(e).

8See P Kahn, Putting Liberalism in its Place (Princeton, New Jersey, Princeton University Press, 2004) 10.

Introduction 65

accounts of property in particular communities, thereby ensuring that community interests and values are built into a system of property rights. Moreover, a failure to supply a coherent account of the public functions of property makes it difficult to rationalise decisions concerning competing private and public rights. Indeed, the absence of a coherent structure of public interests renders public claims open to criticism for being arbitrary exercises of power. The result of this (lack of) focus is a distorted view of the function of property, where public controls on property are seen as external impositions, rather than necessary elements of the property holding.

A full consideration of the public function of property is particularly important in the context of fisheries and other natural resources. Fisheries are not simply owned and used in a way that corresponds to typical notions of ownership: international law prescribes their conservation and management.9 We know that the impact of fishing on other marine resources is controlled, for example to protect dolphins, and there is a whole body of law devoted to the protection of the marine environment, which necessarily impacts upon fishing activities. Moreover, even in property rights-based systems of fisheries management, where the owner and the market play a significant role in determining the use of a fishery resource, the quota is fundamentally contingent on the State for its existence, and so commonly subject to qualifications concerning allocation, use and transfer.10 These regulations are not merely concerned with the facilitation of individual interest, they are concerned with ensuring that fishing activities are conducted in a way that serves the public interest. In resource management there is much scope for private and public interests to come into conflict, particularly when strengthened private rights are sought, or regulatory constraints are imposed upon relatively freely held property rights.11 For example, if a quota is characterised as a property right, then any regulation or limitation of the quota may be construed as a regulatory taking, which may then be subject to claims for compensation.12 It is precisely this type of situation which begs the question, for example, of how a public interest in the management of the fisheries and the protection of the environment is to be balanced against the private rights of the quota holder.

There are many examples of public interests being ultimately prioritised over competing private interests in the control of property. For example, a private property owner may not use their property in a way that threatens the general public’s health and safety, or where the use contravenes certain

9See further ch 7, s 2.

10See ch 8, s 3.

11See ch 1, above.

12See further, ch 8, s 3(e).

66 The Public Function of Property Rights

environmental regulations. Neither may one use one’s property in violation of the criminal law.13 These limitations are not merely practical limits on the use of property. They are restrictions on the scope of private rights that ensure that liberty, utility and other fundamental justifications of property are respected. The justifications of private property examined in the previous chapter revealed a number of imperatives that are, in effect, public interest limitations on property rights. By way of introducing some of the essential aspects of a category of public interests, let us consider these further.

Part of the reason why the labour/desert approach is so compelling is that it encourages socially and economically valuable activities. There is a ‘public interest’ in rewarding certain labour. By rewarding productive labour, society as a whole may benefit from the supply of products to the marketplace. This is further reflected in the desert element of this approach. So, in order to distinguish labour from other assertive acts, only that labour which is deemed socially worthy results in property. Crucially, desert here is regarded as a socially contingent attribute. In this, and other justifications of property, the public interest plays an important role in reinforcing the private function of property, by bestowing a broader political legitimacy on the private right and demonstrating the wider public benefits that may flow from a system of individually held entitlements. Yet the public interest is not limited to reinforcing of a system of private rights. One should recall that any viable labour/desert theory places limitations on the allocation of property. Thus, Locke introduced the ‘spoils’ and ‘sufficient leftover for others’ caveats, a position reflected in Munzer’s waste, spoil and accumulation limit.14 An essential feature of this justification is that is that it directly seeks to limit wasteful accumulations of wealth and provide everyone with the opportunity to acquire material goods. The latter protects the opportunity to guarantee everyone in society minimal subsistence.

The libertarian justifications of property draw upon the contribution that property makes to the political and economic autonomy of agents. Some degree of autonomy is a fundamental condition of any liberal democracy. Thus, property in this tradition may contribute to a broadly defined public interest in guaranteeing political and economic participation. However, in order to protect this position, and also to protect individuals against accumulations of wealth, most liberals would caveat their approach by providing for guaranteed means of subsistence.

The public interest is palpably manifest in utilitarian and economic justifications of property. For the utilitarian, property is instrumental in maximising human welfare across society as a whole. An important

13These limits are expressed in the widely recognised maxims sic utere tuo ut alienum and salus populi est suprema lex.

14S Munzer, A Theory of Property (Cambridge, Cambridge University Press, 1990) 284.

Introduction 67

aspect of this is to guarantee minimal subsistence or holdings because of the net utility this will provide for society. Similarly, the economist views property as facilitating the most efficient allocation of a resource. Private property reduces waste and increases the size of the ‘resource pot’, which in turn enriches everyone in society. Both approaches are deeply instrumentalist and seek to justify private property according the good which it will generate for the community as a whole.15 Although these approaches are typically associated with free market regulation and strong private rights, most societies undertake some form of public interest regulation to ensure that certain fundamental social and economic ends are secured. A useful examination of these is provided by Ogus, who sets out five commonly recognised instances of ‘public interest’ intervention designed to correct market failures: regulation of monopolies, control of public goods and other externalities, correction of information deficits, addressing coordination problems (ie highly complex problems that generate excessive transaction costs) and, arguably, addressing exceptional market circumstances, such as wartime food rationing.16 In each instance, public regulation by the State occurs when market or private law mechanisms fail to secure certain outcomes expected of a market-based system of economic organisation.

According to property as propriety, property is central to the structuring of society and questions of governance. It is thus intimately bound up in questions of public interest. As a minimum, property in this tradition seeks to guarantee access to the essentials (food, water, shelter) for human existence, and probably also guarantees those things that are necessary for political and economic autonomy. Most societies have more developed and sophisticated ideas of good order, and in such societies it is likely that propriety requires more complex forms of ownership. Historically, property in this tradition carried with it certain responsibilities to the community, which on occasion trumped conflicting private interests.17 In contemporary property systems, this public function has frequently been usurped by the State. Thus property holdings, and in the particular the ownership of land and other natural resources, is frequently subject to manifold public duties imposed by law.

It is evident that there are important limitations on the scope of private property. However, it appears that typical accounts of property, such as Honoré’s incidents of ownership, fail to articulate a sufficiently wide

15See, eg, GC Bjork, Private Enterprise and Public Interest: the Development of American Capitalism (Englewood Cliffs, New Jersey, Prentice Hall, 1969) 65.

16A Ogus, Regulation: Legal Form and Economic Theory (Oxford, Hart, 2004) 29–46.

17See ch 2, s 3(e).

68 The Public Function of Property Rights

or coherent scope for the public function of property. Thus Honoré is limited to stating the existence of a negative duty of non-harmful use. This falls short of explaining the wider range of positive requirements to which property may be subject, such as maintaining resource bases and the protection of important social values. Indeed, it does not seem to reflect the minimum public functions of property found in the accepted justifications of property noted above. In the absence of a coherent explanation of the public function of property it is possible to draw upon the wider literature concerning the public interest.18 What we are concerned with in respect of the public function of property is the provision of a coherent framework that can explain what claims in respect of the use of a thing can be legitimately made by a community. To this end we shall now turn to the literature on the public interest. This provides a framework upon which we can build a concept of the public function of property. It is well-suited to the task, for as Feintuck points out, ‘it is generally the case that the concepts of public interest most commonly used tend to derive primarily from an economic model, with a heavy emphasis on the issues raised by competing private (property) rights and interests’.19 The remainder of this chapter explores how the notion of public interest can be used to construct a framework which explains the public function of property.

2. A TEMPLATE FOR THE PUBLIC FUNCTION OF PROPERTY:

THE PUBLIC INTEREST

The protection of certain community interests are an essential feature of the generally accepted justifications of private property. Although these interests typically reinforce economic rationales of wealth maximisation and general utility, they are not necessarily so limited and may include other social and democratic values. As Underkuffler points out, whilst property rights may be abrogated in situations of dire public emergency, they are often abrogated on a more routine basis when they clash with certain goals of government.20 Of course, such infringements must be rationalised and explained if public officials are to counter the claim that they are simply exercising power of the State or other community apparatus in an illegitimate and arbitrary way. Claims and decisions

18See CJ Friedrich (ed), NOMOS V: The Public Interest (New York, Atherton Press, 1962) (hereinafter ‘NOMOS V’); Richard E Flathman, The Public Interest (New York, Wiley, 1966); V Held, The Public Interest and Individual Interests (New York, Basic Books, 1970); M Feintuck, ‘The Public Interest’ in Regulation (Oxford, Oxford University Press, 2004).

19Ibid 22.

20L Underkuffler, The Idea of Property (Oxford, Oxford University Press, 2003) 46.

A Template for the Public Function of Property 69

that are in the public interest must also be rationalised if they are to provide a coherent counterpoint to ‘private rights-based explanations’ of property.

Alas, there appears to be little, if any, scholarly agreement on the precise content of the ‘public interest’.21 This is not helped by the fact that the term has several different usages.22 For example, Allott regards the public interest as a categorical form into which societies put meaning.23 In contrast, there are numerous circumstances when ‘public interest’ has a specific meaning, such as section 58 of the Enterprise Act 2002, which sets out the circumstances in which the Secretary of State may intervene on ‘public interest’ grounds in merger situations. For present purposes, our focus is on the idea of public interest as a form of aggregative social concern which provides a basis for legal action. What is actually being referred to, as Underkuffler puts it, is a ‘public interest demand’, or, more specifically, ‘interests with asserted coercive power’.24 This can be contrasted with ‘self-regarding interests’ that underpin private rights. Of course, this view of the public interest may include specific or operative ‘public interests’ as set out in legislation or as developed by courts.25 However, what is ultimately being advanced is a framework for structuring certain types of community claims, a framework which provides a measure for determining whether or not a claim is validly in the public interest or not.

Despite some apparent uncertainties about the meaning of the public interest, it is possible give the public interest a basic shape, a framework to which we can attach some useful meaning.26 Common to all writings on the public interest is a fundamental linkage between a community and a set of values.27 Let us take Bell’s general definition as starting

21FJ Sorauf, ‘The Conceptual Muddle’ in CJ Friedrich (ed), NOMOS V, n 18 above, 183, 184–5.

22See generally, Feintuck, n 18 above, chs 2, 3.

23P Allott, ‘Mare Nostrum: A New International Law of the Sea’ (1992) 86 AJIL 764, 776.

24Underkuffler, n 20 above, 66, fn 10.

25On these type of interests, see below, section 2(b)(i).

26Colm states that whilst different societies have divergent ultimate values, such as the establishment of communism or God’s Kingdom on Earth, they will tend to share common penultimate values, including, healthy and well-educated individuals and stable social institution. G Colm, ‘The Public Interest: Essential Key to Public Policy’ in CJ Friedrich (ed), NOMOS V, n 18 above, 115, 120.

27This is a theme common across most writings on the public interest. For example, Griffith suggests that it may be roughly synonymous with general welfare: Ernest S Griffith, ‘The Ethical Foundations of the Public Interest’ in CJ Friedrich (ed), NOMOS V, n 18 above, 14. Also, CW Cassinelli, ‘The Public Interest in Political Ethics’ in CJ Friedrich (ed), NOMOS V, Ibid 44, 46; H Lasswell, ‘The Public Interest: Proposing Principles of Content and Procedure’ in CJ Friedrich (ed), NOMOS V, Ibid 54, 64; J Cohen, ‘A Lawman’s View of the Public Interest’ in CJ Friedrich (ed), CJ Friedrich (ed), NOMOS V, Ibid 155, 156; Feintuck n 18 above, 42 ff.

70 The Public Function of Property Rights

point: ‘the interests which people have qua members of the public or the community’.28 This association is a conceptual necessity because public interests take the form of community demands with a cognisable normative element, ie demands made in the name of the community that can result in duties or limitations being imposed upon private persons. This approach suggests two inter-related facets of this definition which require further consideration: the nature and identity of the community and the content of a category of public interests.

(a) The Nature and Identity of the Community

At the heart of the concept of the public interest is the idea of a community. At the simplest level, a community can be defined as a group having things in common, such as religion or culture. As Cohen notes:

this concept of community is a system of values which bind together and weld diverse human forces and relationships into an ordered way of life.29

Inherent in this idea of a community is the existence of and adherence to the accepted values of the community. Indeed, the essential function of such a community is to pursue such common values or objectives.30 This relationship between a community and its values/ interests is symbiotic: communities define their own values—values which in turn define the community. This means that understanding the idea of community is fundamental to explaining the idea of public interests. We shall consider how the nature of the values affect the community in a moment, but it is useful first to consider what constitutes a community and distinguishes it from mere groups, particularly for the purpose of ascertaining how public interests are addressed within a legal system.

28J Bell, ‘Public Interest: Policy or Principle?’ in R Brownsword (ed), Law and the Public Interests (Stuttgart, F Steiner, 1993) 30. See also B Barry, Political Argument (Hemel Hempstead, Harvester Wheatsheaf, 1990) 190.

29Cohen, n 27 above, 156.

30H Bull, The Anarchical Society, 2nd edn (Basingstoke, Macmillan, 1995) 51. Aslo, AJM Milne, ‘The Public Interest, Political Controversy, and the Judges’ in Brownsword, n 28 above, 40, 41. As Abi-Saab notes on the development of the international community, the sense of community is the most important criterion for the existence of a community: G Abi-Saab, ‘Whither the International Community?’ (1998) 9 European Journal of International Law 248, 249. Franck views this as bound up in the notion of reciprocity: TM Franck,

Fairness in International Law and Institutions (Oxford, Clarendon Press, 1995) 10–11. As discussed below, reciprocity provides a crucial mechanism for discerning public interests. See section 2(b)(iv).

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adoption of a corporate charter, the legal rules so utilised are derivative. They are drawn from the broader community’s legal system. Understood thus, the idea of community with which we are concerned is one that is not dependant upon the wider community for its legal rules of organisation; it is a plenary legal community.32

(ii) Types of Plenary Legal Community

The plenary legal community is most commonly associated with the State, and this is an understandable approach, not least of all because it provides a common frame of reference for exploring the notion of the public interest.33 However, the idea of a plenary legal community is neither synonymous with nor limited to that of the State.34 First, this approach runs the risk of assuming that public interests are simply the views of the State or government.35 As we note below, a fundamental feature of the public interest is to provide a normative standard against which, inter alia, government policy can be measured or justified. Although the public interest may coincide with the interests of the State, or rather, State machinery, it must be normatively independent of such interests. Secondly, the State is not the only plenary legal community, as defined above. From a legal perspective, such communities may also exist at both the sub-State and supra-State levels.36 For example, within a federal State a ‘legal community’ exists at both the State and federal levels. ‘Outside’ of the state, the European Union comprises a distinct legal community that overlaps with its Member States and is defined by certain shared economic, social and political goals. There is also an international community;37 a society of States co-existing under

32The question of legal autonomy is not always clear cut. For example, the autonomy of the European Community is to a large degree contingent on the legal orders of its Member States. The same appears true of international law. And yet international law may bestow political autonomy on States, suggesting a degree of circular legitimisation.

33Held, n 18 above, 154–5.

34Indeed, a limited analysis of the community as the State runs the risk of associating the public interest with the interests of the State, which in turn may elevate the interests of dominant groups or the elite within the State to the public interest. See M Feintuck, n 18 above, 38.

35Specifically in the context of the public interests, Bodenheimer talks of the fallacy of governmental fiat, the idea that public officials may misconceive the community interest, make mistakes, or simply abuse their positions to pursue selfish personal goals. It is thus incorrect to associate the public interest with the decisions of public bodies. E Bodenheimer, ‘Prolegomena to a Theory of the Public Interest’ in C J Friedrich (ed), NOMOS V, n 18 above, 205, 209–11.

36See Cohen, n 27 above, 156.

37See, eg, Bull, n 30 above, 13. See also B Simma, ‘From Bilateralism to Community Interest in International Law’ 250 Receuil de Cours (1994, VI) 217, 243 ff; C Tomuschat, ‘Obligations Arising for States Without or Against their Will’ 241 Receuil de Cours (1993) 195, 209 ff.

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international law, although as we will see shortly this community is much more disparate and may be lacking in the same degree of cohesion of plenary legal communities at the State level. For present purposes it is not necessary to explore the full range of possible communities, which includes other sub-State groups or self-determination units. It is sufficient to note the existence of these archetype plenary legal communities, and to show how these communities, with their different legal structures and different compositions, are wedded to sometimes discrete and differing public interest demands. As will be outlined below, and developed in subsequent chapters, the different structures of the domestic and the international communities result in a different shape to the form and force of their respective public interests. This in turn provides a basis for explaining how the public function of property is shaped by various forms of public interest demand.

(iii) State and International Legal Community Contrasted

Let us start by considering the composition of a community. Milne notes that many communities are culturally heterogeneous, with individuals and groups pursuing different and sometimes conflicting goals.38 He continues, pointing out that:

[i]f such pluralistic communities are to hold together and not degenerate into polarised communities, their members must put loyalty to them above their loyalties to their respective religious and ethnic groups.

That means not only being committed to the “rule of law” but to giving precedence to the pluralistic community’s interest over religious and ethnic groups’ interests’.39 Of course, the members of a community will only do this where the community values are truly inclusive.40 Certainly, heterogeneity is no bar to the cohesion of a community. We know that diversity is an important feature of modern pluralist societies.41 Nevertheless, it is reasonable to infer that a higher degree of diversity within a community will make it more difficult to achieve social cohesion and convince members

38Milne, n 30 above, 44.

39Ibid. Polarisation refers to communities that do not share unifying values, typically as a result of divisions along religious, ethnic linguistic or economic lines. Such communities tend to hold together through the force of power of the dominant group in society.

40This has led some to consider more substantive notions of a public interest rooted in fundamental principles of democracy and which are capable of countering dominant or hegemonic group values. See C Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, Massachusetts, Harvard University Press, 1990). Also see M Feintuck, n 18 above.

41J Rawls, ‘The Idea of an Overlapping Consensus’ (1987) 7 Oxford Journal of Legal Studies 1, 4–5.

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to put community interests above their own interests. This may be simply because it makes the process for accommodating values more complex, or it increases incidences of potentially incompatible values occurring within the community. Undoubtedly though, this indicates that there is a strong correlation between the coherence of a community’s interests and its coherence as a community. This can be illustrated by contrasting international and atypical domestic legal communities.

It is suggested that the higher degree of heterogeneity of the international community in contrast to the State based community has made it much more difficult to agree and pursue international public interests.42 These difficulties are to a large extent the simple product of the number and diversity of agents and interest groups which occur within States, and so indirectly, through States, which form the international community.43 To these we must add States themselves and non-State actors, such as international organisations and NGOs. Arguably, these practical difficulties undermine efforts to place the international community’s interests over sectional (State) interests, and suggest that international public interests will be weaker than national public interests. One might consider the difficulties in securing agreement to control global climate change, or the priority of certain human rights over religious rights, or the harmonisation of trading rules, as representative of this type of problem. However, this simple focus on the membership of the community is not enough. It obfuscates the impact that the structure of a community, apart from its membership, may have on the way in which it shapes the form and force of its public interests.

The general structure of a State or national community is fairly wellsettled. Although there are few truly inclusive communities, we can point to what may be called stable political communities, the predominant form of which is the liberal democratic State. In a liberal democracy, citizens possess juridical equality and fundamental civic rights, there is a form of representative government secured by the separation of powers and accompanied by constitutional guarantees of civic rights, the rule of law and a market-based economy that protects private property rights.44 States possess a vertical structure of government, whereby members of the political community invest institutions of government with the power

42This is not entirely negative. It is also important to point out that this heterogeneity will likely result in a wider dialogue about the content of the category of public interests, with the result that new or divergent interests may emerge.

43This might be regarded as a rather Kantian view of international law, which views international law as ultimately concerned with individuals, rather than purely State-centric concerns. For such a position see F Téson, ‘The Kantian Theory of International Law’ (1992) 93 Columbia Law Review 53.

44Michael W Doyle, ‘Kant, Liberal Legacies, and Foreign Affairs’ (1983) 12 Philosophy and Public Affairs 205, 209.

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to govern the community on behalf of the members of the community. Institutions in this sense may comprise habits and practices, although they are frequently embodied in the form of actual organisations or machinery, which strengthens their functionality. Regardless of the degree of sophistication of this vertical structure of government, most modern States possess systems of government that make, communicate, administer, interpret, enforce, legitimise, adapt, and protect rules.45 By virtue of these capacities, States are capable of facilitating, promoting and enforcing broadly accepted public interests.

What then are the features of the international legal system that facilitate the pursuit of international public interests? It is suggested that there appear to be three crucial structural distinctions between the international community and a domestic community: first, it has a horizontal structure; second, and flowing from the first, international law lacks strong global institutions capable of effectively harnessing international public interests; and third, international law is the product of a process of double aggregation. These differences are further compounded by the shorter history of the international community, the changing composition of the community and the wide deficit between real and notional equality of members of the international community. These points will now be considered in turn.

In contrast to a domestic legal order which is hierarchical, the hallmark of the international community is a system of State units interacting horizontally with other State units. Cheng presents the conventional view thus:

the international legal system is horizontal because international society is a voluntary association of States with no superior authority to make law, pronounce judgment and otherwise enforce the law with binding effect, except through institutions which states have, by consent, established.46

Within this system, States are sovereign and equal, and authority in the international legal system is disaggregated throughout its individual members. This disaggregation of legal authority in the hands of individual, self-interested States means that there may be more limited

45 These functions are drawn from Bull. Although he suggests they are not necessarily exhaustive or essential, they are broadly necessary for the maintenance of order in society. Bull, n 30 above, 54.

46 B Cheng, ‘Custom: the Future of General State Practice In a Divided World’ in R St J MacDonald and DM Johnston (eds) The Structure and Process of International Law

(Boston, Nijhoff, 1986) 513, 519–20. Of course this model of the international legal system is open to challenge. For example, Anne-Marie Slaughter suggests a model of international society where many of the traditional functions of the State are exercised by private persons and groups through transnational networks: Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503.

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means for the creation of legitimate and effective public interests. States are primarily responsible for performing the functions that make rules (and so public interests) effective. For the most part States make, communicate, administer, interpret, enforce, legitimise, adapt and protect rules. The paucity of distinct administrative machinery for international government does not mean an absence of institutions. As noted above, and this is crucial in the context of an international community, institutions are also habits and practices. So, although there is no international legislature, States create rules through the mechanisms of customary international law and treaty. States communicate these rules through State officials, diplomats and other civil servants, who also administer these rules. There are international courts and tribunals capable of interpreting and resolving disputes, but these operate on the basis of consent which may render them less effective.47

The absence of administrative machinery leads Franck to conclude that international law will need to rely upon a higher degree of voluntary compliance with the system’s rules to be effective.48 Thus, what engenders voluntary becomes crucial. Franck suggests that it occurs when rules are perceived to be legitimate. If we accept a rule as valid, then we follow it for this reason, and not because it is reinforced by a sanction. The importance of legitimacy in this context needs a few more words because it results in a different and high degree of emphasis being placed on the process and content of the rules developed by States. Legitimacy for Franck is both procedural and substantive.49 Procedural legitimacy results when decisions are reached according to the right process. Franck does not set out formal requirements for right process. He views it as rooted in meeting the expectations of a community, linked to a sense of order and measured by how far it facilitates distributive goals.50 It exists in formal procedures for the making, interpretation and application of rules. Although Franck does not refer to Fuller, it seems to closely parallel Fuller’s requirements for the internal morality of law.51 Substantive fairness means that decisions must take into account the ‘consequential effects of the law: its distributive justice’.52 Thus a system of rules that is perceived to be distributively fair will produce a higher degree of voluntary compliance. It is located in a number of rules of international law, although this is not to say that it is systemic. For example, rules on climate change seek to apportion responsibility for action according to capacity to

47See eg, Art 36 of the Statute of the International Court of Justice.

48Franck, n 30 above, 26.

49Ibid 7–9.

50Ibid.

51See below fn 152 and the accompanying text.

52Franck, n 30 above, 8.

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act.53 What is notable is that many such rules have evolved in the context of environmental protection and the management of natural resources.54 Remaining with matters of property, international rules on the expropriation of property require prompt, adequate and effective compensation’.55 Clearly international law has institutions capable of ensuring legitimacy. However, these are likely to produce distinct types of public interests as a result of the way in which its institutions make, interpret and apply rules of international law. As we shall see in chapter 7, this has implications for

the regulation of natural resources.

The third structural distinction is process of double aggregation of interests which is necessary to determine international public interests. The operation and consequences of this process are keenly observed by Philip Allott.56 He starts by observing that international rules that purport to create rights and duties for individuals only become operative through the interposition of domestic law. This is because our primary social reality is one based upon sovereignty of the State: all persons and land territory are linked to one State or another through the respective principles of nationality and sovereignty. Within this order, domestic and international social systems operate thus. First there is an aggregation of national interests, that is to say, the interests of individuals and groups within a State. These national interests are mediated and processed through some form of system of domestic government and fed in to the international system. International public interests are then formed through the interactions of governments. Thus international public interests are the product of the double aggregation of domestic and then State interests. To complete the cycle, international law then feeds back into domestic social systems according to the relational principles which determine the interface between the two social systems. The structure so presented may result in the emergence of distorted international public interests.57 First, the structure fails to take into account sub-national interests that are not adequately represented by governments. Secondly, it does not take into

53Art 3(1) of the United Nations Framework Convention on Climate Change provides that ‘[t]he Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.’

54Such rules are considered in more detail in ch 6.

55See I Brownlie, Principles of Public International Law 6th edn (Oxford, Oxford University Press, 2003) 509–12.

56Allott, n 23 above, 774.

57This points to the need for more effective relational principles between international and domestic legal systems, and perhaps the need for greater accountability of international decision-making. Whilst I would sympathise with these concerns, such criticisms do not negate the normative role of international law, nor the normative effective of international public interest demands.

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account transnational interests that are not exclusive to the aggregating process within a single State, for example, the interests of multinational corporations. Thirdly, it may exclude common interests of all humanity, which are not attained through the aggregation of State systems interests. However, despite these deficiencies, it is clear that reasonably wellformulated and generally accepted public interests, as exemplified by norms of jus cogens, may emerge in international law.58 Such international public interests have an important role to play in regulating natural resources.

Allott reveals a more insidious distortion arising from this process:

[t]he interaction of the aggregated national interests takes on a life of its own; instead of being merely a way of aggregating individual, sub-national interests into a collective, so called-international interest, the respective aggregations at the state system level come to be seen to be original interests, not merely an aggregate but an independent unity.59

The result is that international law may become detached from the interests of its composite human communities and interests may be formulated that are designed purely to maintain the existence of States, rather than facilitate more direct human ends. Take, for example, the principle of uti possidetis. Generally stated this principle provides that in the event of a post-colonial boundary dispute, the pre-independence boundaries of a former colonial or administrative division should be respected.60 The international community of States has an international public interest in the stability of the political and legal boundaries of States because this provides certainty as to the identity of the members of the community.61 It also promotes the existence of political communities of a sufficient size and scale that are able to function effectively at the international level. However, this public interest principle may ultimately conflict with norms that have much more immediate human concern, such as the right of self-determination. Such a right reflects the interests of groups of people within a State to pursue certain forms of political organisation, and is a manifestation of a basic interest in autonomy of political choice. It is interesting to note that international tribunals have prioritised the principle of uti possidetis over the right of self-determination, thus reaffirming the priority of international stability, and perhaps the purely State-centric interests, over the aggregate interests of sub State groups.62 The old view of absolute State immunity is another such example. According to this

58See below, section 2(b)(v).

59Allott, n 23 above, 775.

60Opinion No 2, Arbitration Commission, EC Conference on Yugoslavia, 11 January 1992, 92 ILR 167, para 1. Also Opinion No 3, Arbitration Commission, EC Conference on Yugoslavia, 11 January 1992, 92 ILR 170, para 2.

61See further the discussion of agency below, section 2(b)(iv).

62Ibid.

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rule a State could not be impeached before the courts of another State according to the maxim par in parem on habet imperium.63 Of course, this view of immunity is no longer tenable. States can certainly be held to account for their commercial transactions.64 And, no longer can former heads of State enjoy immunity from prosecution for acts of torture and conspiracy to torture.65 However, it is worth observing that diplomatic immunity retains the inviolability of premises of a diplomatic mission and the person of a diplomatic agent, the latter being free from any form of arrest or detention or criminal jurisdiction.66 Despite concerns that States have been abusing this process, for example to facilitate acts of violence abroad or to assist terrorists, it is evident that States wish to continue or even strengthen diplomatic immunity.67

As noted above, these fundamental structural differences are reinforced by additional factors. The first is that an international society has existed for only a relatively short period of time, thereby affording it less opportunity to realise an international public interest. Community values are frequently acquired through experience, rather than being entirely deducible from rational reflection.68 Thus most forms of social order are a combination of planning and spontaneous order. Even when international public interests are rationally deduced, the nature of international law may prevent these interests from easy or quick realisation, ie the oft-made observation about the slow evolution of rules of customary international law. These points indicate that time is a crucial factor in the evolution or actualisation of public interests.

The existence of an international community is a relatively new phenomenon, which some observers attribute to the founding of the United Nations.69 Whilst there may have been what can be termed a society of States going back to the Peace of Westphalia, this is generally not considered to constitute a community as defined above. For the most part, States

63As per Marshall CJ in The Schooner Exchange v McFadden: ‘[t]his perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation’: 7 Cranch 116 (1812) 136. It should be noted that this quote serves to illustrate the reasons for immunity, rather than support a view of absolute immunity. In this respect see The Porto Alexandre [1920] P 30 and The Pesaro 271 US 562 (1926).

64I Congresso Del Partido [1983] 1 AC 244 (HL).

65R v Bow Street Magistrates, ex p Pinochet [2001] 1 AC 147 (HL).

66See Arts 22, 29 and 31 of the Vienna Convention on Diplomatic Relations, 500 UNTS 95.

67See C Barker, The Abuse of Diplomatic Privileges and Immunities (Aldershot, Dartmouth, 1996).

68See, eg, the views of Hale on the common law. Reproduced in Sir William Holdsworth,

A History of English Law, vol V, 504–9.

69A Verdross and B Simma, Universelles Völkerrecht: Theorie und Praxis (Berlin, Duncker and Humblot, 1976).

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have pursued individual goals and international law merely sought to coordinate these activities.70 However, since the founding of the UN, one is able to perceive the crystallisation of community interests, such as a concern with international peace and security, the pursuit of political democracy and legitimacy, the protection of the global environment, protection of fundamental human rights, and the more general pursuit of public order matters such as international criminal law. This has led a number of analysts and jurists to consider that the structure of international law has fundamentally altered and become an international community, that is to say a community that is bound by and pursues shared interests.71 However, the evolution of an international community of States is not yet a fully realised project. Despite significant changes in world order, such as the development of international institutions and the articulation of some universal rules, what is certain is that most domestic legal communities have had a much longer and more intensive pedigree, thus affording them time and opportunity to refine their community values. In contrast, the international community has struggled over a relatively short period of time to secure the pre-eminence of its values over the extremely wellestablished and articulated interests of its constituent members.

We have already considered the impact of the heterogeneous composition of the international community on the formulation of public interests.72 Here it may be further noted that the difficulties in formulating public interests are not merely a product of the scale and diversity of an international community; they are also a consequence of the changes in the composition of this community. These changes relate to the identity of States that compose the international community and to the increasing role of non-State actors in international transactions. As regards State membership, the most significant change here was as a result of the decolonisation process occurring in the second half of the 20th century. Between 1950 and 1990, 80 ex-colonies became independent States and members of the United Nations. The international community was no longer a relatively homogeneous club of developed States; it featured a significant number of developing nations with different needs and priorities. The impact of this change in membership on the regulation of natural resources soon became evident as new States brought to the fore issues

70This is Judge Friedman’s law of coordination. See generally WG Friedmann, The Changing Structure of International Law (London, Stevens & Sons, 1964).

71Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Declaration of President Bedjaoui, [1996] ICJ Rep 226, 270-1, para 13. Fassbender suggests that the UN Charter establishes a constitution for the international community which every State is bound to observe irrespective of its own will: B Fassbender, ‘The United Nations Charter as a Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529, 549.

72See above pp 74 ff.

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concerning the allocation of natural resources and the distribution of wealth in the international community. In the period from 1962 onwards, a number of important debates took place at the United Nations and resulted in a number of resolutions and agreements that sought to meet the needs of poorer nations.73

Although States remain the pre-eminent actors of the international community, in terms of setting and adjudicating legal standards, increasingly this is a less exclusive function. Famously, the International Court of Justice confirmed the international legal personality of the United Nations in its Reparation for Injuries Advisory Opinion.74 As a general rule a subject of international law is:

an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims.75

Regardless of whether international personality is synonymous with membership of the international community, the fact is that the addressees (objects) of international law are not at all limited to States.76 Presently, most writers accept insurgents, national liberation groups, international organisations, and individuals as subjects of international law, albeit qualified in their capacity and contingent on the consent of States for their status in international law.77 Examples of this capacity can be found in the rules on individual criminal responsibility, which have expanded beyond piracy and slave-trading to encompass a number of individual crimes, as set out under the Rome Statute of the International Criminal Court.78 Elsewhere, the provisions of the International Convention on Civil Liability for Oil Pollution Damage 1969 establish principles of strict liability for pollution caused by shipowners.79 If we recall that international law needs to retain high levels of voluntary compliance through legitimacy,80 then it is likely that the objects of the law (multinational companies, individuals and non-States actors) will be increasingly concerned with the formation and consequences of international rules. For example, in the context of compliance, Protocol 11 to the European Convention on Human Rights, which is no longer optional, permits individuals to bring claims against

73See N Schrijver, Sovereignty Over Natural Resources (Cambridge, Cambridge University Press, 1997) ch 3.

74Reparations for Injuries, Advisory Opinion [1949] ICJ Rep 174, 178–9.

75Brownlie, n 55 above, 57.

76See the discussion of agency below pp 93–95.

77This list is not exhaustive. One might also include sui generis entities, such as the Holy See or the International Committee of the Red Cross, and multinational corporations. See, eg, A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) ch 7; Brownlie, Ibid, ch 3; R Higgins, Problems and Process (Oxford, Clarendon Press, 1994) 39–55.

78(1998) ILM 999; see Arts 5–8 and 25 of the Statute.

791975 UKTS 106.

80See above pp 76–77.

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States. There has also been a significant growth in the number of claims brought against States by individuals under international investment law. In the context of property rights and natural resources there have already been a number of significant decisions by international tribunals on the treatment of private property under domestic law.81

The last point to make here is that the deficit between the real and formal equality of States may reduce the legitimacy of the international prescriptive process, and so undermine its authority to establish legitimate public interests. The gap between real and formal equality is captured in the famous quote by De Visscher, who draws an analogy between the formation of custom and the formation of a pathway across vacant land:

[a]mong the users are always some who mark the soil more deeply with their footprints than others, either because of their weight, which is to say their power in this world, or because their interests bring them more frequently this way.82

De Visscher shows that members of a community with more wealth and influence or, simply put, power may have a greater impact on the formation of community rules and principles. The point has already been made that the members of a community will only prioritise community interests over selfor sectoral interests if the community values are perceived to be truly inclusive. Rules of custom, and any potential public interests found therein, will not attract high degrees of compliance if they are seen merely to reflect the interests of powerful persons or groups within a community. There are numerous examples of how the capacity and power of States has been a factor in the law making-process. Thus, Schachter notes that military powers have exerted a greater influence on the development of the law of armed conflict, and economic powers have influenced trading and investment rules.83 In the context of international law, this is not to suggest that law is merely the handmaiden of powerful States.84 As we show below, the principle of reciprocity operates as an important constraint on freedom of action.85 The relationship between custom and

81See eg, the cases of Sawhoyamaxa Indigenous Community v Paraguay, Case 12.313, Report No 2/02, Inter-Am CHR, Doc 5 rev 1, at 387 (2002), and the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment of 31 August 2001, Inter-Am Ct HR (Ser C) No 79 (2001).

82C De Visscher, Theory and Reality in Public International Law (Princeton, Princeton University Press, 1957) 147.

83See also O Schachter, ‘New Custom: Power, Opinio Juris and Contrary Practice’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (Boston, Kluwer Law International, 1996) 531, 536–7.

84Such a view is advocated by ‘realist’ scholars. See E Carr, The Twenty Years Crisis (London, Macmillan, 1946); H Morgenthau, Politics Among Nations, 2nd edn (New York, Knopf, 1954).

85See below, pp 95–100.

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power is complex and there are limits to the potentially distorting effect of powerful States pursuing their own self-interests.86 For example, the emergence of the norm of self-determination emerged in the face of pressure from powerful States.87 As chapter 5 illustrates, the formation of the EEZ was largely the product of the concerted action of smaller less powerful States, rather than the product of the then maritime powers, although their subsequent support may have given the concept its final imprimatur of legitimacy. Power has an influence on the prescriptive process but one should not over-generalise about this.

(iv) Conclusions on Plenary Legal Communities and their Public Interests

From the foregoing analysis we can draw four conclusions concerning the way in which public interests are generated within discrete plenary legal communities. First, we can see how community structures and values are mutually reinforcing. In this respect domestic communities are likely to have developed much stronger and coherent public interests along with mechanisms to apply them. Secondly, the different structure and composition of a community is likely to generate different types of community values, and hence public interest demands. In particular, some of the structural weaknesses of international law mean that there is a higher reliance on legitimacy to secure compliance with rules, and so reinforce the sense of community. Thirdly, the structure of the international legal community is such that care must be taken when identifying international public interests. The absence of formal structures of international government, and the diffuse nature of authority in the community, may be viewed as weakening the opportunities for the articulation of public interests. That said, it is clear that the international legal community does possess mechanisms that have allowed public interest values and demands to emerge. Of course, the difference in the composition on the international community and the process facilitating the formulation of public interests has meant that different public interest values may emerge. As we shall see in the next section, and developed in later chapters, these differences pertain to what are called third order interests. Finally, given the spatial and material overlap between domestic and international communities, this is likely to pose difficulties concerning the coordination and resolution of any conflicts between competing accounts of public interest.

86See generally, M Byers, Custom, Power and the Power of Rules (Cambridge, Cambridge University Press, 1999).

87Ibid 76.

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(b) The Categories of Public Interests

Whilst one can describe or induce certain interests to be public, it is much more difficult to deduce the form and extent of a category of public interest in the abstract. Nevertheless, we must start somewhere, and an obvious point of departure is with actual examples of public interests in law.

(i) Operative Public Interests

Given our present concern with the public interest from a legal perspective, a useful beginning is to ascertain what may be termed operative public interests.88 By this we mean those community values or demands that have been given a specific/actual legal form. It is possible to identify many such public interests: from speed limits on roads to controls on the emission of smoke from buildings, from the creation of an offence to protect wild animals to the right to access personal data held by public authorities. In the UK there is particular concern about the concentrations of media ownership and the potentially adverse effect this may have on certain public interests such as freedom of speech and accurate presentation of news. Operative public interests are both explicit and implicit in the underlying legal regime.89 They may take two forms in law: closed public interests and open public interests. Closed public interests are those which have been specifically delineated in law. For example, there is a general interest in maintaining air quality for health reasons. This is given specific form in section 1 of the Clean Air Act 1993, which prohibits the emission of ‘dark smoke’ from the chimney of any building. Whilst there is no explicit mention of the public interest, implicit in the provision is a public interest demand, ie demand for good air quality for health reasons, which limits the operation of a private right, ie the owner’s right to use his property. The open category refers to public interests that are undefined and subject to interpretation. An example of an open interest can be found in section 74A of the Agriculture Act 1970, which allows regulations to control the content of fertilisers or materials intended for the feeding of animals where this is in the ‘public interest’. This allows a

88For a review of public interests that operate in law see Feintuck, n 18 above, chs 3–5. Also, J Wightman, ‘Private Law and Public Interests’ in T Wilhelmsson and S Hurri (eds),

From Dissonance to Sense: Welfare State Expectations, Privatisation and Private Law (Aldershot, Ashgate, 1999) 253.

89Broadcast licences may be revoked in the public interest under Communications Act 2003 s 238(3)(b). See also Communications Act 2003 s 375, amending Enterprise Act 2002 s 58, which refers to the accurate presentation of news and free expression of opinion. These are public interest values to be taken into account in the context of mergers. See generally, Feintuck, n 18 above.

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decision-maker to exercise discretion so as to take account of a variety of factors deemed to be public. It seeks to protect the public health, as does the Clean Air Act, but in this context it is a weaker form of control because it does not impose mandatory restrictions on the use of property rights. Rather limitations are only to be imposed where the decision-makers consider this to be in the public interest.

In both instances there is a regulatory nexus at which public interests are brought to bear on private rights. As such this approach to public interests presents a rather positivist view of public interests: only those interests that are actualised in law may count as public interests. The use of public interests in this manner is a common feature of regulatory regimes—rules that seek to regulate the operation of markets.90 Here the public interest refers to measures designed to control monopolies or facilitate social regulation. The public interest is also used in cases where courts refuse to enforce contracts contrary to public policy. This includes contracts in restraint of trade,91 contracts prejudicial to the operation of government or administration of justice,92 and contracts for immoral purposes.93

There are a number of limitations with this approach which renders exclusive reliance upon operative public interests problematic. First, there is no way of testing the legitimacy of an operative public interest by reference to the specific rule in question.94 Without further validation it risks an unquestioning assumption that values entrenched in a legal system truly embody the interests of the public or community. It may be that a community requires adherence to the law by simple reason of the moral virtue in upholding the law.95 However, as Lyons points out, there is ‘no reason a priori to accept a presumption favouring obedience to law, and neither experience nor theory favours such a presumption’.96 Even theorists who purport to claim a moral presumption favouring obedience

90See Ogus, n 16 above; also T Prosser, Law and the Regulators (Oxford, Clarendon Press, 1997).

91‘The public interests which the common law doctrine against restraint of trade is designed to promote, are social and economic—liberty and prosperity.’: Petrofina (Great Britain) v Martin and Another [1966] 1 All ER 126, 138 (Diplock LJ). ‘The public interest requires in the interests both of the public and of the individual that everyone should be free so far as practicable to earn a livelihood and to give to the public the fruits of his particular abilities.’: A Schroeder Music Publishing Co Ltd v Macaulay [1974] 3 All ER 616, 621 (Lord Reid).

92Amalgamated Society of Railway Servants v Osborne [1910] AC 87.

93Pearce v Brooks (1866) LR 1 Ex 213.

94See Flathman, n 18 above, 63.

95One might associate such a position with the virtue of maintaining order or the importance of preserving the integrity of a legal system.

96D Lyons, ‘Normal Law, Nearly Just Societies, and Other Myths of Legal Theory’ in Brownsword, n 28 above, 13.

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to the law, such as Bentham and Hart, make room for justified disobedience.97 Experience shows such a presumption to be both unfounded and dangerous. First, there is evidence of law’s failure to define adequately the public interest, as manifest in the open category of operative public interests. This failure is also manifest where such interests are advanced in judicial proceedings and so may be of little value in subsequent proceedings.98 Secondly, and perhaps more importantly, there are numerous instances of operative public interests that conflict with fundamental precepts of morality, or which result in minority interests being marginalised or worse. The perpetuation of slavery throughout history, the Nuremburg Laws of Nazi Germany and the policy of apartheid in South Africa are poignant examples. They might be viewed as aberrations, the product of flawed communities, and the claim might be advanced that truly just societies will produce just laws. This will not do. We might admit, as does Rawls, that there is a fundamental natural duty of justice which ‘requires us to support and comply with just institutions that exist and apply to us’.99 One might further claim that the minimal threshold for a just society is reached through a genuine political democracy. However, it is doubtful whether such a position has been reached. As Rawls later accepts, so-called democratic societies have historically failed to achieve this position.100 This point needs no further evincing.

Secondly, the open category of operative public interests requires a frame of reference for the determination of the public interest, which the regulatory structure does not provide. Accordingly, a decision-maker must draw upon some extra-legal conception of the public interest to justify his determination of the public interest at any given time for any given issue. A decision maker that fails to provide a principled articulation of the interest is immediately exposed to criticism that the public interest so stated is a mere rhetorical device to gloss over a decision reached on narrower, possibly ad hoc political, grounds, or that the decision represents a subjective rather than objective account of the public interest.

In short, legal rules are the product of other fundamental values, and not the source of the values. Operative public interests provide empirical evidence of the existence of the category of public interests, but there is no basis for assuming their inherent legitimacy. As such, it is necessary to provide a normative account of public interests which presents a method

97Bentham permits this on grounds of utility. See Lyons, Ibid fn 4. Hart admits of the need to subject law to moral scrutiny, and that this may provide cause for disobedience. HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1999) 210.

98BM Mittnick, The Political Economy of Regulation (New York, Columbia University Press, 1980) 256 ff.

99J Rawls, A Theory of Justice (Oxford, Clarendon Press, 1972) 115.

100Ibid 226.

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for independently determining the content of the category of public interests. The distinction here is between the public interest (conceptual framework) and a public interest (operative interests). The position adopted here is that an operative public interest—that is to say a community demand that is legally coercive—must adhere to the requirements established for a framework for the public interest (set out below).

(ii) Normative Public Interests

Held, in her leading analysis of the public interest, presents a typology of public interest theories: preponderance theories, common interest theories and unitary theories.101 Common interest theories assume the existence of interests common to all members of a community, whilst preponderance theories look for interests which are merely held by the majority of a community. Both approaches look to calculate the public interest from the sum measure of individual interests, and to this extent are quantitative devices used to determine the public interest, rather than identify the content of it. There are a number of problems with quantitative approaches. First, in reality truly common interests will rarely exist.102 Moreover, as soon a single person disputes the common interest, it negates the idea that the interest is actually common. Whilst such difficulties are avoided by preponderance accounts, this will invariably result in minority interests being excluded. Moreover, both accounts fail to accommodate the interests of future generations.103 Such interests must form part of the public interest because communities are dynamic organisms with an interest in ensuring the conditions for their continued existence. For these reasons quantitative approaches to the public interest are rejected. This leaves us with unitary approaches.

Unitary approaches seek to derive the public interest from some overarching ethical value or set of values. According to Held, a unitary account of the public interest asserts that something is in the public interest if it is of universal moral worth.104 In this sense the public interest relies on an underpinning moral principle or set of principles. The principle criticism of a unitary conception of the public interest is that it requires the advancement of a single, universally supported moral theory. This then precludes the existence of conflicting individual interests.105 Whilst this

101Held, n 18 above, 42–6 and chs 3–5.

102Barry n 28 above, 196.

103See Feintuck, n 18 above, 13.

104Ibid 135–6.

105Held, n 18 above, 154–60. Also A McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 Modern Law Review 671, 675–6.

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criticism appears true of Socratic and Hegelian abstractions of the public interest, which purport to establish unitary moral theory, it elides more complex, pluralist visions of morality (certainly as it applies to property concepts). We are not suggesting that there is an absolute or unified moral basis to the public interest, but rather that it derives from a value that is capable of being applied universally. Before we identify those qualitative principles that underpin the public interest, we must deal with another significant objection to the public interest which follows from the rooting of the public interest in some notion of moral worth.

Lucy and Mitchell point out that if the unitary concept of a public interest is rooted in some substantive moral principle or doctrine, then what is the point of invoking the public interest rather than that moral principle directly.106 This echoes Held, who suggests that the term should ‘not be used to convey meanings for which more precise terms are available’.107 There are, however, a number of reasons that support the use of the public interest as a normative category. First, at an operational level law does not usually draw explicitly or directly upon moral philosophy to determine the content of rights. It does, however, frequently make use of the ‘public interest’ or similar device to permit decision-makers to insert other (extra-legal) values into a decision-making process.108 Yet the public interest is more than just a mediating concept at the interface of law and morality. It provides a framework within with certain values can be articulated. Moral principles or doctrines encompass both individual and collective values. The public interest serves to define a particular subset of moral values—these are explicitly community-type values—which are relevant in a decision-making context. Moreover, if we recall that the public interest may be conceived of as a categorical form, which necessarily holds a plurality of values, it reinforces the idea that several rather than singular moral values should be taken into account. This mirrors the role played by private law justifications of property set forth in chapter 2: property is based upon a number of irreducible justifications (eg, liberty, utility and propriety), all of which are important to decisions about the use and allocation of

106WNR. Lucy and C Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55 Cambridge Law Journal 566, 595–6.

107Held, n 18 above, 163.

108See eg, Art 1 of the First protocol to the European Convention on Human Rights, which provides that: ‘[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ (emphasis added)

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natural resources. Finally, the public interest provides more than simple rhetorical coherence to a set of ideas or values; it exerts a normative pull on the way in which decisions are reached in society.109 In the same way that private property directs attention towards the importance of protecting individual autonomy against the States, the public interest serves to direct attention to the public functions of property. It serves to contextualise any decision by making explicit, as was shown above, the linkage and effect of the relationship between a community’s values, structures and legal rules.

Returning now to the key purpose of this chapter, we need to establish a normative framework for the public function of property. So far we have identified the public interest as a device that facilitates certain community interest demands to be made in a legal context. These demands must pertain to certain community values, be they substantive or structural. They must also be rooted in some idea of morality that can be applied universally (at least within the community). They must also be capable of having legal effect. What follows is a normative framework for the public interest which seeks to fix the operation of the concept in these core requirements. In doing so it sets out the content of these underlying values, and indicates some of the limitations inherent in the public interest. At this stage, it must be emphasised that a normative account of the public interest is presented as an argument of principle. It seeks to explain or justify certain legal relationships or decisions that are taken in the public interest. As Bell indicates, the public interest operates as a justification in situations or decisions where some persons ‘lose out’, but are compelled to conform because of the overall gain for the community.110 In such a context, the framework for the public function of property so derived operates as a series of higher order principles or justifications shaping the regulation of property.

Underlying this approach is an assumption that public interests may differ qualitatively, meaning that some public interests are more important than others. To reflect this, public interests are categorised into three orders of interests. First order interests are those that meet the physical needs of any community, and includes anything deemed necessary to the survival of life per se. Second order interests are structural requirements that are essential to existence of social order per se. Third order interests are those distinct aims of the plenary legal community, which may be manifest as fundamental rules of a legal system. This ordering indicates

109In Allott’s more evocative terms, it is the ‘notional centre of gravity of a society. … It determines the direction of action of all social force.’ He continues to note that it causes public decision making to be directed at the interest of society as a whole. Allott, n 23 above, 776.

110Bell, n 28 above, 30.

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some degree of hierarchy between the interests.111 More will be said on this once the content of each order is outlined.

(iii) First Order Public Interests

Turning now to first order interests, in chapter 2 it was shown that all accounts of property seek to guarantee a minimal level of subsistence. Humans cannot survive without certain basic goods, ie air, water, food, and shelter, and to be blunt, without life there can be no society. Central to the present study is the fact that this basic order of interests provides a strong basis for environmental rules and principles which seek to ensure the conditions for meeting these vital needs. The importance of ensuring these goods is not limited to survival per se; it is also a requirement of political order in the liberal tradition. As the liberal position holds, any form of political association will risk collapse if it fails to ensure that basic needs of its members (and hence their political autonomy) can be met. In short, first order interests comprise of the provision of certain basic goods necessary for survival. Of course this begs the question: at what level of subsistence should basic goods be ensured so as to meet survival needs?

It would seem reasonable to argue that any list of basic goods must be qualified so as to specify a certain minimum quality of the basic good. For example, air must be sufficiently free of harmful contamination to allow us to breathe without our health being jeopardised. Water should be sufficiently clean to allow its consumption.112 Food should be sufficiently nourishing, and so on. Of course, it is difficult to state precisely what degree of quality is required here, other than to indicate it should be sufficient to sustain life. The determination of this sufficiency threshold is a technical judgement that requires a different knowledge basis, one which is the domain of scientific experts. It is thus a question of application rather than principle. At this point it is necessary to point out that our concern with basic needs represents a de minimis threshold for survival. Malnes makes a useful distinction between what he terms vital needs and preferences or desires. As he points out, our individual well-being is achieved through the fulfilment of our interests. Some interests, which he terms vital needs, consist of ‘the physical prerequisites of survival and normal biological functioning’.113 These vital needs contribute to a person’s well-being regardless of what they actually want and generally comprise the types of basic good noted above. In

111One may draw parallels between this approach and Maslow’s hierarchy of needs. See A Maslow, ‘A theory of human motivation’ (1943) 50 Psychological Review 370.

112See eg, the Indian Supreme Court decision in Andhra Pradesh Pollution Control Board v Nayudu (No 2) [2002] 3 LRC 275.

113R Malnes, Valuing the Environment (Manchester, Manchester University Press, 1995) 34.

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contrast, preferences or desires frequently relate to a quality of life (although they may overlap with vital needs) and these are to a large extent chosen.114 Whilst the argument for meeting a de minimis threshold of basic needs may appear to be morally unsatisfactory, the likelihood is that de minimis levels are always exceeded through the pursuit of third order interests. Thus, most societies, subject to their economic capabilities, will pursue a higher minimum quality of life as a part of their particular social goals.

Two further qualifications should be added to this description of first order interests. First, we should ensure vital needs can be met for both present and future members of a community. Communities are not static; they are dynamic, evolutionary organisms having an interest in their continued existence. This means that not only must imminent vital needs of a community be guaranteed, but so too must the conditions for their continued provision. Vital needs must be sustainable. Here the argument for first order interests dovetails neatly with a burgeoning area of environmental law and policy. There is an influential body of literature which proclaims a moral responsibility to future generations.115 It advocates what is commonly referred to as ‘intergenerational equity’. The idea, at least, seems incontrovertible and is manifest in a growing body of ‘norms’ that seek to actualise this responsibility.116 However, despite the importance which is attached to the idea as a matter of policy, the move from a moral principle to a legal principle is more problematic.117 As Lowe points out:

equity is by definition a technique for ameliorating in the name of justice the impact of legal rules upon the existing legal rights and duties of legal persons.118

Generations other than the present do not exist and simply cannot appear to secure their ‘rights’. At present, it is not entirely clear that future generations have been endowed with justiciable rights and there are infrequent instances of such being accepted by courts. The decision in Oposa et al v Fulgencio S Factoran Jr et al seems exceptional in this respect.119

114This is not to say they are unimportant because having a certain quality of life rather than a mere existence is a common and reasonable moral position to adopt.

115Rawls, n 99 above, 284–93; E Brown Weiss, In Fairness to Future Generations (Dobbs Ferry NY, Transnational Publishers, 1989); L Gündling, ‘Our Responsibility to Future Generations’ (1990) 84 American Journal of International Law 207.

116Principle 3 of the Rio Declaration on Environment and Development proclaims that ‘[t]he right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’

117V Lowe, ‘Sustainable Development and Unsustainable Arguments’ in A Boyle and D Freestone (eds), International Law and Sustainable Development (Oxford, Oxford University Press, 1999) 19, 26–30.

118Ibid 27 (emphasis added).

119GR No 101083, July 30 1993; reproduced in (1994) 33 ILM 173. One might argue that the notion of preserving conditions that allow people, including future generations, to meet certain needs is implicit in the public trust doctrine in US law. See, eg, National Audubon Society v Superior Court of Alpine County 658 P2d 709 (1983) 724.

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Here the Philippines Supreme Court admitted a class action by a group of children on behalf of their own and future generations’ interest in the preservation of rainforest habitats from rapid destruction. Notably, the court couched the decision in terms of an obligation to ensure the protection of the environment for future generations.120 Lowe admits that such a duty might be readily pursued at the domestic level because centralised governmental authorities can make distributive choices legitimately.121 Mechanisms such as trust law might also facilitate this by allowing representative decision-making on behalf of future persons. However, such a duty is problematic at the international level because there is an absence of institutional capacity and procedural rules to allow future concerns to be addressed. Although this seems to be a problem of implementation, rather than substance, it highlights how vital it is to have what Feintuck refers to as diligent agency: community institutions and procedures capable of representing the distinct interests of future generations.122

A second qualification arises because guaranteeing certain basic goods may not be a sufficient condition for sustaining life, at least directly, in modern communities. Many forms of contemporary social organisation feature a high degree of interdependency between the members of a society. The institution of private property is pervasive, so much of the world’s resources and means of production are in private hands. This means that basic goods may not be readily available, other than through market mechanisms, welfare systems or other institutions of the State. Accordingly, ensuring access to and participation in these institutions is just as important as the basic goods.123 The need to safeguard rights to access and participation in social institutions that lead to the satisfaction of basic needs is picked-up in kind by Charles Reich.124 In his earlier

120‘Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.’ Oposa case, Ibid 185.

121Above n 117, 28.

122Feintuck, n 18 above, 13.

123The importance of such rights is acknowledged in a number of instruments, including Arts 22 and 25 of the Universal Declaration of Human Rights. Art 22 provides: ‘[e]veryone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ Art 25(1) provides: ‘[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.’ See also, Art 9 of the International Covenant on Economic Social and Cultural Rights.

124See C Reich, ‘Beyond the New Property: An Ecological View of Due Process’ (1990)

Brooklyn Law Review 731.

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work, he argued that certain benefits essential to individual survival ought to belong to the individual as property rights.125 Although this extreme view of rights did not gain wider acceptance, the more moderate claim that sought adequate procedural protection of such rights was hugely influential. Again this shows the contingency of some first order interests on the existence of adequate institutional mechanisms and procedures, suggesting that the boundaries between first and second order interests are neither rigid nor absolute.

(iv) Second Order Public Interests

Second order interests are those interests that secure social order per se. At this point it is important to indicate the relationship between second and third order interests, that is between structural principles universal to all plenary legal communities and the interests particular to a community, which may pertain to the structure of the legal system. Despite this distinction it becomes clear in the following review that the boundaries between the two may be difficult to sustain in practice and that third order interests play an important role in shaping the particular application of second order interests, for example by the application of universal jurisdiction to certain fundamental norms. Whilst all communities have an interest in legal order, that order is usually for a purpose and not purely for its own sake.

It is suggested that there are three structural principles that are fundamental to all plenary legal communities: agency, reciprocity and jurisdiction. These principles provide a legitimate basis for public interest demands, and every legal system will seek to ensure that private transactions do not infringe them.

Every plenary legal community is comprised of persons capable of bearing of legal rights and duties.126 The principle of agency (or personality) recognises the formal legal capacity of entities (agents) to participate in a plenary legal community. In most domestic legal systems, individuals are bestowed, either explicitly or implicitly, with formal legal equality, as in the case of France.127 The core principle says nothing of the precise extent of such capacity, such as whether all men, women

125C Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733.

126As Kelsen notes, ‘there must be something that ‘has’ the duty or right’: H Kelsen, General Theory of Law and State (Cambridge, Massachusetts, Harvard University Press, 1949) 93.

127Art 1 of the French Constitution of 4 October 1958 provides that ‘F[rance] shall ensure the equality of all citizens before the law, without distinction of origin, race or religion.’ Art 3 continues to provide that ‘[n]ational sovereignty shall belong to the people, who shall exercise it through their representatives and by means of referendum. No section of the people nor any individual may arrogate to itself, or to himself, the exercise thereof’.

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or children enjoy full legal agency before the law. The precise contours of agency may properly be seen to comprise a third order interest. Thus different legal systems will have different ages of majority and different rules about legal capacity in general. Moreover, all formally recognised agents do not enjoy the same capacity to bear rights and duties in all circumstances. Any legal system may adjust a person’s formal legal capacity so as to facilitate the particular aims of the community. Thus political leaders may receive enhanced authority to make decisions affecting the general populace whereas convicted criminals may have some attributes of their agency curtailed during their period of incarceration. We should also distinguish between the primary agents of a legal system and secondary legal personalities, such as corporate bodies. Secondary legal persons are endowed with a degree of agency that allows them to perform a particular and limited function, but they lack full legal capacity to hold as many rights and duties as primary agents. Although formal equality is not always the norm, each community must address the question of agency. Even for States, where political power is monopolised, there must be some rules which define the status of individual legal subjects in law.

The principle of agency operates at the international level, where States are the primary agents of the legal system. As in the case of domestic communities one may draw a distinction between formal and material equality, and note that the capacity of States to act may vary according to their ability to exert their political influence on formal legal process. However, this does not detract from the basic point that States enjoy, at least, formal equality as the primary agents of international law.128 What is interesting and distinctive about the international legal community is the fact that the rules on agency are much more deliberative. Arguably, this is because the primary actors—States—are social constructs rather than biological facts. Accordingly, rules must exist on precisely what constitutes a State.129 Whereas the identity of a natural legal person is easier

128See, eg, Art 2(1) of the United Nations Charter. As Brownlie states: ‘[t]he sovereignty and equality of states represent the basic constitutional doctrine of the law of nations which governs a community consisting primarily of States having a uniform legal personality.’: Brownlie, n 55 above, 287.

129The factual criteria for statehood (population, territory, effective and independent government) have been well-rehearsed elsewhere. See, eg, J Crawford, The Creation of States in International Law (Oxford, Clarendon Press, 2006); C Warbrick, ‘States and Recognition in International Law’ in M Evans (ed) International Law 2nd edn (Oxford, Oxford University Press, 2006) 217. What may be more important to note are those rules that seek to give form to and preserve the agency of States. See, eg, Art 2(1) of the United Nations Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (1970) UNGA Res. 2625 (XXV).

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to define, juristic personality is contingent on constructive legal rules.130 We must also acknowledge that the agency of the State must be distinguished from the agency of the natural persons that comprise it. Such a distinction is crucial because in international law States are both the creator and subject of the law. This means that entitlement to participate in the creation of the law is a consequence of their agency. The simple fact that sovereignty more immediately resides in the hands of States, rather than organs of (supra-national) government, means that much more care is taken to delimit the nature and scope of agency under international law. In short, the consequences of agency in international law are more far reaching than in domestic legal systems. Accordingly, one must treat rules that touch upon agency under international law with a higher degree of circumspection.

The principle of reciprocity is considered to be a fundamental feature of all forms of social organisation.131 This extends to legal analysis.132 As Franck notes:

[t]he laws in a community thus evince not only the generally held belief that each must do what he or she is legally required to do, but also that each will discharge towards all others those obligations arising from the shared moral sense.133

Reciprocity flows from recognition of the formal equality of the participants in the legal system; that law is not unidirectional, but the product of transactions between the members of a community for what might be termed ‘mutuality of gratification’.134 Such transactions must embody an element of quid pro quo. It is in the public interest to ensure that private transactions or interests do not infringe the principle of reciprocity.

Despite its axiomatic status, commentators have mostly neglected to provide a systematic definition of reciprocity or explain its functional implications.135 For our purposes, a useful model of reciprocity is provided by the international relations scholar, Robert Keohane.136 Keohane’s

130‘A State is not a fact in the sense that a chair is a fact; it is a fact in the sense in which a treaty may be said to be a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules or practices.’ Crawford, Ibid 5.

131See generally Alvin W Gouldner, ‘The Norm of Reciprocity: A Preliminary Statement’ (1960) 25 American Sociological Review 161.

132Fuller’s account of reciprocity is the most notable attempt to systemise an account of reciprocity in general legal theory. L Fuller, The Morality of Law (New Haven, Yale University Press, 1969) 19–27.

133Franck, n 30 above, 11. See also Byers, n 86 above, 88–105.

134T Parsons and EE Shills, Toward a General Theory of Action (Cambridge, Massachusetts, Harvard University Press, 1951) 107.

135See Gouldner, n 131 above, 161–2.

136Robert O Keohane, ‘Reciprocity in international relations’ (1986) 40 International Organization 1.

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approach is relevant to the present discussion, not only because it has parallels in legal literature, but because it provides a convincing normative account of how relationships operate within a community structure. Drawing upon social exchange theory, he defines reciprocity as

exchanges of roughly equivalent values in which the actions of each party are contingent on the prior actions of the others in such a way that good is returned for good and bad for bad.137

Underpinning this is the idea that agents act voluntarily. Thus reciprocity complements the principle of agency, based as it is on the formal equality of the persons in a community. Notably, Keohane casts reciprocity in neutral terms: it does not necessarily require positive cooperation. Thus a harmful act may be reciprocated by another harmful act. However, even self-interested agents will appreciate the potential benefits of cooperative action.138 Moreover, negative retaliatory acts can place pressure on agents to conduct themselves in accordance with generally accepted standards of behaviour.139 Essential to reciprocity is the requirement that exchanges be roughly equivalent.140 Without this, the relationship is no longer reciprocal, but merely a one-sided exercise of power. Of course, it is neither possible, nor necessary, to require strict equivalence because the values pursued in any exchange are subjectively appreciated. The result is that the quality and determination of this equivalence may be determined according to how one characterises the reciprocal relationship. At this point the distinction between specific and diffuse reciprocity becomes important.

Specific reciprocity refers to ‘situations in which specified partners exchange items of equivalent value in a strictly delimited sequence’.141 An example of this would be a simple contractual exchange. The exchange works because it is allied to the self-interest of the rationale agent to adhere to the terms of an exchange into which he enters voluntarily. Keohane admits of difficulties with application of specific reciprocity in complex

137Ibid 8. Although Keohane does not claim reciprocity as a universal principle of world politics, he suggests that it does not explain every form of action. However, given that he is not advancing a strict theory of reciprocity this seems incongruous with his subsequent claims concerning diffuse reciprocity. Unless agents can obtain their interests without reference to other agents, or be immune to the consequences of their actions, then they will have to observe some degree of reciprocity in their conduct by the mere virtue of entering into relations with other agents.

138See further R Axelrod, The Evolution of Cooperation (Hammondsworth, Penguin, 1990).

139See, eg, the rules on countermeasures under international law. ‘Countermeasures are responses to an internationally wrongful act. They are intrinsically illegal, but are justified by the alleged failing to which they were a response.’ D Alland, ‘Countermeasures of General Interest’ (2002) 13 EJIL 1221. Although not expressly sanctioned, Art 54 of the Articles on the Responsibility of States for Internationally Wrongful Acts leaves open the right of States to take action to ensure compliance with certain peremptory norms.

140Fuller, n 132 above, 23.

141Keohane, above n 136, 4.

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multilateral situations.142 For example, specific reciprocity, predicated as it is upon egoistic rational self-interest, cannot explain how public goods are created because there is no automatic guarantee of a return to actors for their investment in creating the public good. Neither can it deal with the free rider, such as the State which benefits from the agreement of two other States to reduce their carbon emissions at their own expense. Simply put, the parties to a specific agreement cannot ignore the impact of that agreement on other parties. This limitation is critical because legal systems are never comprised of purely bilateral relationships, but of networks of social relationships involving many and sometimes all agents within a legal order. Even bilateral relations, based upon specific reciprocity, may have consequences and create expectations across a community about how agents will conduct themselves. For example, one person cannot grant the same exclusive trading privileges to all people. This suggests that specific reciprocity alone is an insufficient basis for explaining voluntary cooperative behaviour in a plenary legal community. We require a notion of reciprocity that explains how legal relations may be sustained in a continuing and multitudinous legal community.

Diffuse reciprocity involves situations of exchange where the aspect of equivalence is measured not in the form of direct rewards, but through a commitment to generally accepted standards of behaviour. In other words, ‘a pattern of diffuse reciprocity can be maintained only by a widespread sense of obligation’.143 Where this sense of obligation stems from is unclear in Keohane’s work, although drawing upon Blau and Gouldner, he indicates that it may evolve from sequential incidents of specific reciprocity.144 Where agents are involved in an open-ended relationship, they are likely to have a stake in maintaining that relationship to secure the future possibility of mutually beneficial exchanges. Parisi and Ghei have suggested that where there is an element of randomness inherent in a system (so that agents cannot also plan accurately for future contingencies) or where there is a possibility of role reversal (thereby individuals may benefit from some transactions, but lose out in others), agents will cooperate in the expectation of a general reciprocal return in the future rather than an immediate specific reward.145 Stochastic uncertainty encourages agents to act prudently and guard against future conflict or disadvantageous treatment under the law.146 This reflects the

142Ibid 12 ff.

143Ibid 20.

144Ibid 21. See also P Blau, Exchange and Power in Social Life (New York, Wiley, 1964) 92 ff; Gouldner, n 130 above, 175.

145F Parisi and N Ghei, ‘The Role of Reciprocity in International Law’ (2003) 36 Cornell International Law Journal 93, 108–9.

146A highly relevant consideration here is the precautionary principle.

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element of prudence inherent in Rawl’s difference principle, the idea that just communities should enhance the life opportunities of the least advantaged.147 In the original position, where an agent does not know the specific circumstances he will find himself in, he will seek to protect himself from adversity. It is a

principle of mutual benefit. … The social order can be justified to everyone, and in particular to those who are least favoured; and in this sense it is egalitarian.148

In this sense, diffuse reciprocity contributes to general social stability and order, and may be regarded as countering some of the obvious structural problems associated with international law.

Specific reciprocity can evolve into diffuse reciprocity, which, in turn, becomes part of a formalised rule structure created by shared practices and reasoned argument occurring through sequential practices. The result is reciprocal relationships not only between agents, but also between the agents and the institutions of a society—between the citizen and the State. Drawing upon the work of the eminent sociologist Georg Simmel, Fuller observed that:

there is a kind of reciprocity between government and the citizen with respect to the observance of rules. Government says to the citizen in effect, ‘These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct.’ When this bond of reciprocity is finally and completely ruptured by government, nothing is left on which to ground the citizen’s duty to observe the rules.149

Law is not simply the direction of power by the State it is the product of what may be termed ‘vertical reciprocity’.150 As Brunnée and Toope observe:

when understood as a purposive activity, law is inevitably a construction dependent upon the mutual generative activity and acceptance of the governing and the governed.151

Crucially, where the mutuality of any legal relationship is lacking, either through the absence of anticipated specific rewards, or through disaggregated (diffuse) rewards, then the relationship will lose its legitimacy. In

147Rawls, n 99 above, 75–83.

148Ibid, 102–3.

149Fuller, n 132 above, 39–40. See also Gerald J Postema, ‘Implicit Law’ (1994) 13 Law & Phil 361, 364.

150‘[T]he existence of a relatively stable reciprocity of expectations between lawgiver and subject is part of the very idea of a functioning legal order.’ Fuller, n 132 above, 209.

151J Brunnée and S Toope, ‘International Law and Constructivism: Elements of an International Theory of International Law’ (2000) 39 Columbia Journal of Transnational Law 19, 48.

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this sense, reciprocity stands as a benchmark against which the legitimacy of a specific legal norm can be measured.

The obvious criticism is that this benchmark is too general to be of any use in measuring specific legality. This is where Fuller’s eight requirements for the internal morality of law come in. Presented negatively as eight ways to make law fail, these are: (i) a failure to achieve rules per se, so that every matter is decided on an ad hoc basis; (ii) a failure to publicise rules; (iii) the abuse of retroactive legislation; (iv) a failure to make rules understandable; (v) the enactment of contradictory rules; (vi) rules requiring conduct beyond the powers of the subject of the law; (vii) introducing such frequent change so as to prevent citizens from orientating their conduct with the law; and (viii) a failure of congruence between the rules and their actual administration.152 These rules present a benchmark for the standards of procedural fairness that ensure the conditions for diffuse reciprocity.153

Even if one disputes these general requirements, it is clear that the abstract principle of reciprocity underpins a number of actual and precise legal rules.154 In domestic legal systems diffuse reciprocity tends to be formalised through rules and institutions that ensure that agents adhere to the same standard of behaviour in particular contexts.155 Thus reciprocity is evident in the notion of principles such as exceptio non rite adimpleti contractus, consideration, and sic utere tuo ut alienum non laedas. Diffuse reciprocity is embodied in the idea of the rule of law, and, in particular, rules of public law.156 Of course, in international law this formalisation of the abstract principle is less complete, but it can still be seen to apply in contexts such as international humanitarian law,157 treaty reservations,158 and bilateral trade arrangements. In contrast, diffuse reciprocity is often localised to situations where high degrees of common interest exist and the agents care about the future. This is particularly evident in the negotiation of the United Nations Convention on the Law of the Sea 1982. This treaty was negotiated as a package deal and a review of the negotiation process reveals how States were willing to accept

152Fuller, n 132 above, 39.

153See above, pp 76–77.

154See A Lenhoff, ‘Reciprocity: The Legal Aspects of a Perennial Idea’ (1954) 49 Northwestern University Law Review 619; Also DW Greig, ‘Reciprocity, Proportionality and the Law of Treaties’ (1994) 34 Virginia Journal of International Law 295, 298.

155As noted above, the abstract principle evolves into or is supplanted by specific rules.

156Arguably, the importance of a strong version of reciprocity is reflected in Feintuck’s concern with endowing the public interest with strong democratic credentials. Feintuck, n 18 above.

157See T Meron, ‘The Humanization of Humanitarian law’ (2000) 94 AJIL 239.

158Art 21(1)(b) of the Vienna Convention on the Law of Treaties provides that ‘reservation established with regard to another party … modifies those provisions to the same extent for that other party in its relations with the reserving State’.

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between organs of government and between citizens and the State. This provides an important source of public interests. What is notable here is that this public law is very much the product of the third order values, ie the interests of a particular community.

In contrast, international law is a horizontal legal order. States are the principal agents of the legal order. This means that rules of jurisdiction are effectively rules about the competence of States and as such are closely bound up with issues of agency. Under international law, territorial jurisdiction is the pre-eminent basis of jurisdiction.160 In part, this is derived from the agency of the State, ie territory is one of the core attributes of Statehood. Yet it also flows from the logical convenience of being able to divide jurisdiction into discrete and exclusive spheres of competence. This aspect of jurisdiction is of fundamental importance because it means that the boundaries of public authority between States are determined by international law.

States enjoy plenary territorial prescriptive jurisdiction, meaning that they can, in theory, legislate for any matter in respect of any person so long as they are within the territory of the State.161 There are two variants on territorial jurisdiction. Subjective territorial jurisdiction allows the State to exercise prescriptive jurisdiction in respect of acts initiated within its territory but completed elsewhere. Objective territorial jurisdiction refers to acts completed within the territory, but initiated elsewhere. States have commonly asserted both forms of jurisdiction.162 However, the application of the latter has given rise to problems when States have sought to extend its application to activities that have a no intra-territorial element, but only economic repercussions in the State’s territory. For example, the US has made resort to the extra-territorial application of its antitrust law in order to attempt to control activities seen as harmful to the economic interests of US companies.163 This indicates that issues of comity and cooperation between States may dictate the limits of public power.

160Brownlie indicates that this is at least a presumption: n 55 above, 287.

161Of course most States moderate this competence, and frequently exclude overseas citizens from certain fiscal duties, or preclude them from enjoying certain privileges, such as voting rights.

162For example, in DPP v Doot [1972] AC 807, the House of Lords allowed the DPP’s appeal to permit the prosecution of five Americans for conspiracy to smuggle cannabis into the USA, even though the conspiracy was occasioned overseas.

163US v Aluminum Co of America 148 F 2d 416 (2nd Cir, 1945). See also US v General Electric Co 82 F Supp 753 (D NJ, 1949); Continental Ore Co v Union Carbide & Carbon Corporation, 370 US 690 (1962); Re Uranium Antitrust Litigation; Westinghouse Electric Corporation v Rio Algom Ltd, 617 F 2d 1248 (7th Cir, 1980). More recently, this approach was confirmed in Hartford Fire Insurance Co v California, 509 US 764 (1993). The court held that it is ‘well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States’: at 796 (Souter J).

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The second base of prescriptive jurisdiction is jurisdiction over nationals. States have the right to extend the application of their laws to their citizens wherever they are located. It also extends to ships and corporate bodies registered in the State. Whilst States have a general freedom to fix the terms of any grant of nationality, this is not absolute. However, the limitations on this are not entirely certain in law. The Nottebohm case is sometimes mistakenly taken as authority for the position that there must be a genuine and close link between the individual and the national State for nationality to be effective.164 However, the case turned on the narrower issue of whether nationality was effective for the purpose of diplomatic protection, and there is little doubt that States enjoy a wide authority to exercise prescriptive jurisdiction over individuals who are nationals of that State.

The third basis of jurisdiction is jurisdiction by consent. A number of treaties specifically provide for the exercise of extraterritorial jurisdiction.165 Such treaties almost exclusively focus on the prosecution of certain criminal activities, and they commonly establish jurisdiction on the basis of the principle aut dedere, aut iudicare (the state in which the person is located must either prosecute or extradite to a state willing to prosecute the alleged offender). This form of jurisdiction shows how States are determined to extend the ordinary bases of jurisdiction to ensure that certain crimes are prosecuted. It also illustrates how susceptible jurisdiction is to third order interests.

A fourth basis of jurisdiction asserted by States is jurisdiction over acts which affect the security or vital interests of the State.166 This is known as protective jurisdiction. The UK, for example, has used this principle

164Nottebohm case (second phase) [1955] ICJ Reports 4.

165Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971, 974 UNTS 177; United Nations Convention on Psychotropic Substances, 1019 UNTS 175; United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973, 1035 UNTS 167; International Convention against the Taking of Hostages 1979, 1316 UNTS 235; Convention on the Physical Protection of Nuclear Material 1980, 1456 UNTS 246; UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, 1678 UNTS 221; The Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf 1988, 1678 UNTS 304; Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, (1989) 28 ILM 493; International Convention for the Suppression of Terrorist Bombings 1997, (1998) 37 ILM 247; Convention for the Suppression of the Financing of Terrorism 1999, (2000) 39 ILM 270.

166Art 7 of the Harvard Draft Convention on Jurisdiction with Respect to Crime provides that ‘[a] State has jurisdiction with respect to any crime committed outside its territory by an alien against the security, territorial integrity or political independence of that State, provided that the act or omission which constitutes the crime was not committed in the exercise of a liberty guaranteed the alien by the law of the place where it was committed’. (1935) 29 AJIL Supp. 543. See also US v Bowman, 260 US 94, esp 98.

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to prosecute aliens abetting illegal immigration on the high seas.167 Similarly, Australia has validly extended its criminal jurisdiction for fishing offences committed outside its territory,168 and the US relies upon it to control drug trafficking on the high seas.169 Most commentators are agreed that the principle is well-established and sensible.170 However, the category of vital interests is an open one, and whilst certain matters may be considered to fall within it, there are risks inherent in extending it beyond what are truly vital interests. The question then is to determine the category of interests that may be protected according to this jurisdiction. The principle of jurisdiction does not itself proscribe the limits to this base of jurisdiction. Rather this is contingent on the overarching aims of a community and is closely tied to the nature of the substantive issue justifying universal jurisdiction. Some activities are considered to be so morally reprehensible that all States have an interest in their repression.171 For this reason States enjoy universal jurisdiction in a limited number of circumstances. As Lord Millet remarked in the Pinochet case:

Every state has jurisdiction under customary international law to exercise extra-territorial jurisdiction in respect of international crimes which satisfy the relevant criteria… Customary international law is part of the common law, and accordingly I consider that the English courts have and always have had extraterritorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law.172

Typically, universal jurisdiction includes crimes under international law such as genocide, serious war crimes and crimes against humanity. It also covers crimes that might otherwise go unpunished, such as piracy. Indeed, this is the original basis for the category of universal jurisdiction. Notably, the content of this category has developed over time, with more States being willing to resort to this form of jurisdiction as a means of addressing serious offences.173 This indicates that universal jurisdiction cannot be considered a closed category. It would seem, as in the case of the protective jurisdiction, the scope of this jurisdictional base is contingent on the particular substantive goals of the international community.174

167Molvan v Attorney General for Palestine [1948] AC 531.

168Giles v Tumminelo [1963] SASR 96; Munro v Lombardo [1964] WAR 63; Port MacDonnell Professional Fishermen’s Assn Inc. v South Australia (1989) 168 CLR 340.

169US v Gonzalez 776 F.2d 931 (1985).

170Brownlie, n 55 above, 302–3; V Lowe ‘Jurisdiction’ in M Evans (ed) International Law, 2nd edn (Oxford, Oxford University Press, 2006) 335, 347–8.

171L Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford, Oxford University Press, 2003).

172R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (Amnesty International intervening) [1999] 2 All ER 97.

173Lowe, n 170 above, 349.

174See the following section for a discussion of possible such interests.

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Enforcement jurisdiction under international law is governed by a single clear principle: States may not exercise enforcement jurisdiction in the territory of another State without that State’s consent.175 This serves to reinforce the centrality of territory in matters of jurisdiction. As noted below, this has ramifications for the regulation of property and natural resources.

Structurally, the principle of jurisdiction is value-neutral and merely concerns the need for competence to be allocated. Yet it seems clear that the allocation of competence is closely bound up with the particular goals of a community. Domestically, these goals concern particular preferences for the organisation of organs of government, and the relationship between citizens and the State. For example, the separation of powers noted above is essentially a political choice of a community about the legitimate structure of government. In essence, jurisdiction is about competence and every plenary legal community must address this matter. From the above synopsis of jurisdiction, the most important limitations on jurisdiction arise from the interface between discrete plenary legal communities (States) and relate to limits imposed by international law on the exercise of competence by States. Indeed, as the Permanent Court of International Justice stated ‘the jurisdiction of a State is exclusive within the limits fixed by international law’.176

At root these second order or structural principles are concerned with the parameters of order within society. As we have noted throughout order is a value neutral consideration. We are saying nothing as to what constitutes good or bad order, although we admit that the requirements of diffuse reciprocity are likely to compel positive cooperation and may evolve into more formalised rules structures that incorporate certain precepts of good moral order. However, for present purposes, all we are suggesting is that these core structural principles compel communities to articulate mechanisms and institutions that give effect to them.

(v) Third Order Public Interests

Third order interests are those interests that are particular to a given society and reflect its collective aims. A review of the literature on the public interest reveals a strong degree of consensus on the linkage between the public interest and a society’s fundamental values. For example, Held

175Lowe, n 170 above, 356.

176Nationality Decrees Issued in Tunis and Morocco (1923) PCIJ Series B, No 4, 24. Emphasis added.

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of slavery,185 the freedom of expression,186 the guarantee of due legal process,187 universal suffrage,188 and guarantees against arbitrary search and arrest.189 This does not purport to be anywhere near an exhaustive list of constitutional principles, nor does it presume that the precise rights and duties referred to in individual constitutions enjoy the same scope or protection in law. It is merely illustrative, and indicates that certain fundamental interests are frequently articulated, sometimes as higher law, and that these interest share familial resemblances. However, as Daintith points out, for a constitution to provide a measure of the public interest it must provide some clear, and, perhaps, explicit, parameters.190 This approach to third order interests suggests a degree of linkage between third order interests and operative public interests. Thus the absence of relatively clear and explicit constitutional norms in the UK may undermine the claim that they are public interests norms. This may be contrasted to the US, where the constitution frames fundamental rights much more explicitly. Absolute parameters are not necessary. Although the examples of public interests provided may be contestable, they are no more so than many private rights.191 What does seem clear is that third order interests in domestic law may be more readily identified by considerations of form, rather than substance. This may be contrasted with third order interests under international law.

Under international law there exists a category of norms that embody the fundamental interests of the international community. These peremptory norms or jus cogens admit no derogation, and include the prohibition of acts of aggression, the prohibition of torture, the prohibition of slavery and piracy, the prohibition of genocide, the prohibition of racial discrimination and apartheid, the basic rules of humanitarian law, and self-determination.192

185See, eg, Art 6 of the Malaysian Constitution; Art 24 of the Constitution of the Republic of the Fiji Islands.

186See, eg, Art 15–6 of the South African Constitution; Art 19 of the Indian Constitution; Art 39 of Constitution of the Federal Republic of Nigeria 1999; Art 21 of the Italian Constitution.

187See, eg, Art 27 of the Constitution of Afghanistan; Art 35 of the Constitution of the

Federal Republic of Nigeria 1999; Art 167 of the Constitution of the Republic of Cameroon.

188See, eg, Art 3 of the French Constitution; Art 19 of the South African Constitution; Section 37 of the Constitution of the Argentine Nation.

189Art 9 of the South African Constitution; Art 41 of the Constitution of the Arab Republic of Egypt; Art 99 of the Constitution of the Kingdom of Norway.

190T Daintith, ‘Comment on Lewis: Markets, Regulation and Citizenship’ in Brownsword (ed), n 28 above, 139, 141.

191See Bell, n 28 above, 34.

192See the comments of the International Law Commission. [1963] Yearbook of the ILC, vol II, p 199. More specifically, on acts of aggression see the Nicaragua case (Merits) [1986] ICJ Rep 14, [191] ff. On torture see Filitarga v Peña-Irala, 630 F 2d 876 (2nd Cir 1980) and Al Adsani

vGovernment of Kuwait (1996) ILR 536. On genocide see Lauterpacht’s Separate Opinion in the

Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional measures, [1996] ICJ Rep 325 at 440. Humanitarian norms are considered as peremptory in the Nuclear Weapons case, [1996] ICJ Rep 226, [78]–[83]. However, the ICJ did not pronounce on this. On self-determination, see East Timor (Portugal v Australia), [1995] ICJ Rep 90, [29].

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However, whilst there is general agreement about which norms constitute jus cogens, the matter of how to ascertain a peremptory norm in general is somewhat more problematic.193 Also, there is obviously a link between the list of jus cogens and the category of operative public interests. So, to avoid the criticism that this category is descriptive or apologetic, rather than normative, one is obliged to put forward some criteria for identifying jus cogens. There is occasional reference to the quality of the norm in question as a determinative factor. Thus, the ICJ noted that ‘the question whether a norm is part of jus cogens relates to the legal character of the norm’.194 This reflects the approach of the ILC, who were of the view that it

is not the form of a general rule of international law but the particular nature of the subject matter with which it deals that may … give it the character of ius cogens.195

Unfortunately this is too wide. Although it indicates that some inherent quality of the norm is vital to its status, it provides no a priori criteria for determining the content of the category.

A number of authors have sought to establish such criteria.196 Uhlmann, for example, suggests four decisive criteria: an absolute character, acceptance by the vast majority of the State community, the protection of a State community interest, and a foundation in morality.197 Let us consider these in turn. The most commonly noted feature of peremptory norms is their absolute status—they admit no derogation and apply without qualification.198 However, this characteristic is a consequence of status, not a condition of status. Rather we should view non-derogability as evidence of the status of a norm. General acceptance is a requirement set out under Article 53 of the Vienna Convention. It has also attracted some academic support.199 However, as noted above in respect of preponderance accounts of public interest, this may result in minority positions being marginalised. For this reason it cannot be regarded as determinative. Like the first criterion, it is suggested that general acceptance might best be regarded as evidence of status. More promising is to look at whether or not a norm protects certain fundamental community interests. Indeed,

193See A McNair, The Law of Treaties (1961) 215; S Kadelbach, ‘Jus Cogens, Obligations Erga Omnes and other Rules—The Identification of Fundamental Norms’ in C Tomsuchat and J-M. Thouvein (eds), Fundamental Rules of the International Legal Order (Leiden, Nijhoff, 2006) 21.

194Nuclear Weapons case, n 192 above, [83].

195Report of the International Law Commission, [1966] Ybk ILC vol II, 248.

196WT Gangl, ‘The Jus Cogens Dimensions of Nuclear Technology’ (1980) 13 Cornell International Law Journal 63, 74–77.

197Eva M Kornicker Uhlmann, ‘State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms’ (1998) 11 Georgetown Internatioanl Environmental Law Review 101, 104 ff.

198See Art 53 of the Vienna Convention on the Law of Treaties.

199See L Hannikainen, Peremptory Norms in International Law. Historical Development, Criteria, Present Status (Helsinki, Finnish Lawyers’ Publication Co, 1988) 210 ff. M Bos, ‘The Identification of Custom in International Law’ (1982) 25 German Yearbook of International Law 43.

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most writers regard the key criterion of jus cogens to be that the norm is in the interests of all States.200 It is embodied in the view of the ICJ in its Advisory Opinion to the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide:

[i]n such a Convention, the contracting states do not have any interests of their own; they merely have, one and all, a common interest.201

Further, in the Barcelona Traction case, the ICJ referred to the prohibition of genocide, the basic principles protecting the individual, such as the prohibition of slavery and racial discrimination, to illustrate the ‘obligations of a state towards the international community as a whole’.202 Similarly, the reference to ‘common concern of humankind’ in the preamble of the Convention on Biological Diversity indicates the linkage between community interests and the preservation of biodiversity.203 The basing of a norm of jus cogens in morality also seems to be essential. Thus Uhlmann argues that peremptory norms occur at the intersection of ethical and legal norms.204 Her approach follows that of a number of important writers, including Fitzmaurice, 205 McNair,206 Verdross and Cassese.207 Indeed, she explicitly draws upon Verdross who regarded jus cogens as an ‘ethical minimum recognised by all the states of the international community’.208 Of course, law is not synonymous with morality, so the mere link between a legal rule and a principle of morality cannot be enough to give it a higher status. Indeed, as Lauterpacht notes, law often enforces duties that may be regarded as ethically unconscionable or unpardonable.209 Rather only the most serious immorality ‘such as to render its enforcement contrary to public policy and to socially imperative dictates of justice’ suffices.210 This begs the question what degree of morality is relevant? Whilst a

200A Verdross, ‘Forbidden Treaties in International Law’ (1937) 31 AJIL 572. Also Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’ (1966) 60 AJIL 55–63; Hanikainen, n 199 above, 4; O Schachter, International Law in Theory and Practice (London, Nijhoff, 1991) 343; A Orakhelashvili, Peremptory Norms in International Law (Oxford, Oxford University Press, 2006) 47, 67.

201Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide

[1951] ICJ Rep 15, 23.

202Barcelona Traction, Light and Power Co. (Belgium v Spain), [1970] ICJ Rep 3, [33]–[34].

203(1992) 31 ILM 822

204Uhlmann, n 197 above, 109.

205G Fitzmaurice, [1958] Yearbook of the ILC, vol II, p 41.

206McNair, n 193 above, 213.

207A Cassese, Self-determination of Peoples (Cambridge, Cambridge University Press, 1995) 174.

208Verdross, ‘Forbidden Treaties’ n 200 above, 574.

209H Lauterpacht, International Law. Arranged and edited by E Lauterpacht (Cambridge, Cambridge University Press, 1970) vol 1, 358.

210Ibid. He then goes on to note the lack of international safeguards against abuse of power ‘veiled in morality’. For a consideration of this issue see Franck, n 30 above, and the accompanying text.

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precise answer may be difficult to articulate, one approach is to look at the linkage between first and third order interests. This is self-evident in the context of jus cogens, where most, if not all, norms pertain to fundamental interests in individuals’ life and welfare. This should not be surprising: any community must have the protection of its members’ basic life and welfare as its primary function. As the ILC has noted, these obligations

arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values.211

(vi) The Relationship Between Orders of Public Interest

Having considered the different orders of interest, we should now consider the relationship between these orders and other values. The first assumption is that first order interests take priority over second and third order interests. Individuals are unlikely to form or join a community that would require them as a matter of principle to subsume their own vital needs to those of the community as a whole on a regular and ongoing basis. Whilst certain sacrifices may be required from time to time, or by some individuals on behalf of others, such a reversal of priorities is exceptional. This prioritisation of first order interests is reaffirmed when we look at the relationship between vital needs and occurrent desires.

If vital interests are pivotal to survival it seems reasonable to infer that vital interests in this sense ought to take priority over occurrent desires. However, there are not infrequent examples of individuals sacrificing their vital interests for other reasons, such as a hunger striker or suffragette.212 This is likely because many occurrent desires are grounded in particularly weighty moral values, such as autonomy of choice. For example, an individual may eschew food or medical treatment in the pursuit of religious belief.213 Despite this occasional prioritising of certain interests over vital needs, one cannot accept their general prioritisation at the community level. As Malnes states, no-one should have to undergo death or physical harm just so that another person can have their desires satisfied.214 Vital interests must take normative priority, because in the

211Art 40, Commentary, para 3. Reproduced in J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002) 246.

212See J Griffin, Well-Being: Its Meaning, Measurement and Moral Importance (Oxford, Clarendon Press, 1986) ch III.

213See, eg, R v Blaue [1975] 2 All ER 446, where vital medical treatment was refused on religious grounds.

214Malnes, n 113 above, 44.

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The second order principles seem to operate at such a level of generality or have such fluid boundaries so as to make their precise application as public interests impossible. In each case, the precise delineation of agency, reciprocity and jurisdiction seems to be contingent on the particular interests of a plenary legal community. This is particularly so with principles of jurisdiction.216 Although this contingency seems to weaken the argument for taking these second order principles into account, they retain a further and important function. As structural requirements for a legal system, second order interests cannot be disregarded without compromising the integrity of the system. They are a structural necessity—whatever form they may take. This suggests that third order interests which serve these structural requirements become prioritised by proxy. Accordingly, any interests within a legal community appear to enjoy a degree of normative priority that correlates to the degree to which they are viewed as protecting or furthering the core functions of the second order interests. For example, freedom of expression tends to obtain a high level of legitimacy (and normative priority) in a community bound by liberal democratic ideals because it advances the principle of agency. This relationship between second and third order interests is also evident in the operation of the principle of agency in international law. Here, agency is embodied in the principle of the sovereign equality of States. More specific, but third order interests that relate to this principle include Articles 2(4) and 2(7) of the United Nations Charter. These seek to preserve the territorial integrity and reserved domain of domestic jurisdiction of States respectively. To the extent that agency used to be more closely associated with exclusive territorial sovereignty, these rules presented a considerable restraint on the scope of State action.217 It is interesting to note that the agency of States has become more refined over time to such an extent that agency now includes elements of legitimacy, such as respect for the right to self-determination, protection of human rights and, possibly, adherence to democratic principles. Presently, States which engage in egregious violations of human rights cannot shield themselves from scrutiny and challenge behind principles of sovereignty and domestic jurisdiction. It is

216For example, universal jurisdiction has evolved to meet the demand for jurisdiction to control a growing range of international crimes and serious breaches of international law. See, eg, Belgium’s attempt to assert jurisdiction in the Arrest Warrant case [2002] ICJ Rep 3.

217As Huber stated in the Island of Palmas case: ‘[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.’: Netherlands v US (1928) Permanent Court of Arbitration 2 RIAA 829.

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at least arguable that States may now intervene in other States to protect such interests.218

Whilst each order of interests is conceptually discreet, it is clear that each has an influence on the other, and, in particular, it has been indicated that the quality of third order interests may be closely related to the extent to which they further first and second order interests. This is not to suggest that third order interests collapse into first and second order interests. Thus the prohibition of piracy does not appear to be immediately explicable according to first and second order interests stated, but instead derives from the desire to ensure that trade is not impeded by criminal activities. Rather what is suggested is that third order interests are reason dependant. They are generally contestable and so must be justified. This approach is adopted by Bell, who argues that claims to both rights and public interests must take the form a rational and coherent argument from principle.219 For example, the right to free speech is typically grounded in the idea of individual autonomy or the need to provide a market place of ideas.220 In the same way a public interest in protecting a particular resource may be grounded in need to ensure that minimum levels of subsistence are ensured for members of a society. The degree to which third order interests are capable of being rationalised according to universal principles found in first and second order interests is determinative of their weighting in a decision-making context.

3. PUBLIC INTERESTS AND THE PUBLIC FUNCTION OF PROPERTY

The public function of property describes those property relationships that facilitate certain public or community objectives. The public function of property is rooted in the maintenance of social order. Indeed, all justifications of private property acknowledge a minimal public function of property or some restriction on the scope of private rights, be it to protect certain basic needs or to allocate authority or to order society. This public function is marginalised in most accounts of property, with the exception of ‘propriety theories’ which address the matter directly. Such marginalisation of the intrinsically social function of property distorts property discourse, which may result in legitimate State or community demands on property being construed as unjustified interferences with

218See, eg, W Michael Reisman, ‘Coercion and Self-Determination: Construing Charter Art 2(4)’ (1984) 78 AJIL 642.

219Bell n 28 above, 32–4. Also R Alexy, A Theory of Legal Argumentation (Oxford, Clarendon Press, 1989) 202–5.

220See A Harel, ‘What Demands are Rights? An Investigation into the Relation between Rights and Reasons’ (1997) 17 Oxford Journal of Legal Studies 101, 104–5.

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private rights. It may also result in concentrations of ownership at levels that lead to other rights and liberties being infringed. This makes the construction of a credible account of the public function of property absolutely necessary. It locates a discussion of property in its proper societal context and it provides a structured and principled approach to justifying the use of property for public purposes, thus presenting a framework for evaluating what public interest demands may legitimately affect property holdings. The concept of the public interest provides an appropriate vehicle for framing an account of the public function of property because it is fundamentally concerned with articulating and protecting public or community based values. Indeed, most accounts of the public interest are concerned with the regulation of property or private property based institutions such as the free market.

As property is a social construct, the values that determine the content of the institution are those of the community in which the institution is located. Even the self-regarding interests associated with private property are socially contingent. And whilst a particular community may adopt a particular balance between private and public interests that favours the former, it cannot ignore the latter. In short the public function of property is an essential feature of property.

Each and every community must have a decision-making structure that addresses the public and private functions of property. Each and every community will have a legal system that puts these functions into practice. This is evidenced by the routine prescription and adjudication of property rules that delimit public and private rights and duties in respect of property. Of particular importance are those rules which regulate markets and deal with the failure of markets to protect social objectives, rules pertaining to the regulation of the conservation and management of natural resources and the environmental law more generally. Such prescriptions are fundamentally associated with protecting the basic interests of a community.

Public interests are necessarily contingent; they are always the product of a community. This invests them with a plurality of values, but it also means that the different structure and composition of a discreet community will produce discreet public interests. In other words the public function of property will vary across different communities. By community we are referring to a plenary legal community. Typically this community is a State. However, it is absolutely essential to emphasise the role of the international community of States in shaping the public function of property. This is because international law has a central role to play in the regulation of important natural resources, including fish and other marine resources, international areas such as Antarctica, and global commons. It is also a driving force in the setting of environmental standards, including binding norms and procedures for the protection

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only provides legal capacity, but entitlement to participate in rule making. The traditional or orthodox rules of agency under international law, that is the criteria for statehood, require a State to possess territory. In terms of property rules an important adjunct to this is the concept of sovereignty over natural resources. Sovereignty over its natural resources reinforces a State’s sovereignty and permits it to function more effectively.222 However, such capacity to act gives rise to certain responsibilities and it is notable that sovereignty over natural resources now entails certain duties in the treatment of private property, including the conservation of natural resources, the non-discriminatory treatment of foreign owned property, and minimum conditions attaching to the expropriation of property.223

The principle of reciprocity explains and governs transactions that give rise to legal obligations. It requires that transactions proceed upon the basis of quid pro quo. This should involve some degree of equivalence, which serves to reinforce the principle of agency. In general, reciprocity stands as a benchmark of the legitimacy of a specific legal norm. Similarly, it is in the public interest that property rules should be in accordance with the principle of reciprocity. This requires a degree of equivalence in property relations and transactions. This should not be construed as requiring strict equality of holdings and in property transactions (specific reciprocity). However, many transactions will proceed upon this basis. Rather reciprocity requires that property holdings and transactions respect generally accepted standards of behaviour (diffuse reciprocity).224 Reciprocity has important implications for the operation of property. For example it explains why private property rights should only be sacrificed for clearly understood and significant public benefits, and that when such sacrifices are made, they should be adequately compensated. The nature of diffuse reciprocity is such that it encourages participants in a plenary legal community to act prudently. Stochastic uncertainty demands that persons guard against future conflict or disadvantageous treatment. This provides a further and compelling justification for measures to ensure the means for future subsistence and economic progress. It justifies the conservation of certain natural resources.

Jurisdiction determines the applicable law and enforcement mechanisms. Whilst jurisdiction may be adapted to meet certain fundamental concerns, as in the case of universal jurisdiction, the general rules of jurisdiction remain quite fixed. In the context of property rights the most important facet of jurisdiction is the principle of territorial jurisdiction.

222See Schrijver, n 73 above.

223Ibid ch 10.

224At a minimum this may entail ensuring Fuller’s eight conditions for the internal morality of law.

116 The Public Function of Property Rights

An adjunct of this is that property is for the most part governed by the lex situs rule. This provides that transactions governing the transfer of property are governed by the place where the property is situated, with the result that public interest considerations are also governed by the lex situs.225 The rule is supported by reason of its simplicity and certainty.226 However, this rule has been subject to some criticism, indicating that it does not deal with all forms of property, and especially intangible properties such as shares and other securities.227 This line of criticism may be extended to natural resources regulation taking place outside the territory of a State, thereby lacking a lex situs, and forms of property which lack material qualities, such as quotas or licences.228 A further limitation on the lex situs rule is that it may be discounted in situations where the lex situs is contrary to public policy. The traditional approach has been to treat this exception quite cautiously, as in the case of Oppenheimer v Cattermole.229 However, the House of Lords broke new ground in the case of Kuwait Airways Corp v Iraqi Airways Co.230 Here the court refused to apply the lex situs rule when faced with the question of title to aircraft expropriated by Iraq during the invasion of Kuwait in 1990. The Iraqi law, which vested title to the aircraft, was considered to be ‘a gross violation of established rules of international law’,231 and as Lord Hope stated:

there is no need for restraint on grounds of public policy where it is plain beyond dispute that a clearly established norm of international law has been violated.232

Whilst this approach may be compelling as a matter of principle, and certainly on its particular merits in the case, it also raises some particular problems for the regulation of property. International law does not address the default position, ie specifying which law will regulate property where the lex situs is contrary to public policy. That said, there are principles relevant to the regulation of natural resources under international law. These are considered further in chapter 5.

225In Winkworth v Christie Manson & Woods [1980] Ch 496, a painting stolen in England and sold in Italy gave the purchaser good title where the paining was purchased bona fides. See also Cammell v Sewell (1860) 5 H & N 728. Luthor v Sagor [1921] 3 KB 532 (CA) confirms the application of this rule to property expropriated abroad.

226As Maugham J stated, ‘anyone can doubt that, with regard to the transfer of goods, the law applicable must be the lex situs. Business could not be carried on if that were not so’: Re Anziana [1930] 1 Ch 407, 420.

227See generally, M Ooi, Shares and Other Securities in the Conflict of Law (Oxford, Oxford University Press, 2003).

228See further, ch 8, below.

229[1976] AC 249.

230Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19.

231Ibid [29] (Lord Nicholls).

232Ibid [140].

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some form, and specific examples of this will be explored in subsequent chapters. Before doing this, however, it is necessary to explain how the public and private functions of property interface at a conceptual level. It is imperative that we understand how rights and public interest are generally delimited through the law because this will dictate in a significant way the shape of particular property holdings. In the next section, we provide a brief typology of the possible relationships between private rights and public interest demands. This considers the prima facie priority of rights, the prima facie priority of public interest demands, the coincidence of private rights and public interest demands, and a contextual approach. Pervading this schematic is the argument that both private rights and public interest demands are necessarily reason dependent, or in other words how the law serves to advance other values. The approach favours a contextual approach to determining the relationship between private rights and public interests. For this reason we return to the idea that physical, legal and moral factors shape excludability (the core attribute of private claims) and show how these factors are contextually determinative of the relationship between private rights-based claims or public interest demands that arise in respect of the objects of property law. Once the influence of these factors is detailed, their influence on particular forms of property is then briefly considered, with a particular emphasis on stewardship. It is suggested that for a number of physical, legal and moral reasons, natural resources are particularly susceptible to this type of holding.

2. THE INTERFACE BETWEEN PRIVATE AND PUBLIC

FUNCTIONS OF PROPERTY

The relationship between the public and private functions of property may be determined in one of four ways. First the private and public functions may work in harmony so that the same instrumental outcome is desired for the application of property in some particular context. Secondly, the private function may be prioritised over a conflicting public interest demand. Thirdly, the public interest demand prevails over the private function. Fourthly, the balance between public and private functions is a priori indeterminate. This means that in a dispute between private rights and public interests, determination of the matter will depend upon context and the arguments brought to bear on the dispute. As indicated above, the latter approach is preferred. This is because it provides a more calibrated and flexible account of property, one that reflects the practice of property law. However, even though absolute versions of property according to private or public interests are discounted, this does not dispense with the need to explore the relationship further. Despite rejecting

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the idea of absolute priorities of private or public types of interest, it may be the case that the way law works, results in ‘weight’ being afforded to certain types of interest, thereby structuring decisions about the use of property, and more specifically decisions concerning the use of natural resources.2 Each of these possibilities will now be explored in turn.

(a) The Coincidence of Private Rights and Public Interests

When the public interest and the interests of an individual coincide this seems to provide a compelling reason for adopting a particular course of action. This is because there is no reason not to respect the interests of both the individual and the wider community. If we recall our analysis of property rights in chapter 2 and public interests in chapter 3, we can identify several areas of apparent coincidence. In general, all the justifications of private property and the basic requirements of the public interest coalesce in the requirement that property institutions guarantee everyone in society a minimum level of subsistence. Both sets of interests appear to support the autonomy enhancing function of property that enables individuals to pursue worthwhile political lives. Furthermore, it is consistent with both interests to prohibit the use of property in ways which are harmful to other persons. In addition to these general coincidences, there may also arise some coincidence between particular justifications of private property and particular aspects of the public interest. For example, it is in both the public and private interest (according to the labour/desert theories) to reward socially productive labour. It may also be in the public and private interest (according to utility and economic theory) to allocate property in a way which reduces waste and inefficiency in the utilisation of resources. Clearly, then, there are many potential areas of coincidence between the public and private interest which support the regulation of property in a particular fashion.

However, if we are realistic, we must acknowledge that there is far more likely to be a lack of coincidence between private and public interests in the regulation of property. First, if we accept that property is justified by a plurality of justifications then it is possible for any private rights-based claim to property and, indeed, any public interest demand, to be couched in terms of several irreducible values. Whilst some of the underlying values

2 As Twining and Miers have noted, we must take care to recognise the limits of metaphors such as ‘weighting’ or ‘balancing’ when it comes to indicating our rational preference for one argument over another: W Twining and D Miers, How to Do Things with Rules, 3rd edn (London, Weidenfeld and Nicolson 1991) 271. Whilst we argue below that our choices are structured by the form of law, and by other physical and moral considerations, we would concede that there is not always any absolute or exact measure of such preferences.

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rights are stringently protected and remain constant at all times with the result that private property rights have normative priority.4 This does not mean that private rights trump every time, rather they can only be overridden for compelling reasons.5 Under the ‘operative’ conception of property, rights may be adjusted time after time to meet new demands and circumstances.6 In this view, there is no presumptive power for private property rights over competing public interest claims. Rather the competing private right and public interest will be evaluated in the circumstances of the case as a whole. The operative view of property is understood to have the capacity for change built in. We shall return to this view of property below, but for now we need to show why the common or ‘rights trumping’ conception of property is unsatisfactory.7

Underkuffler presents a model of rights (and property rights) which seeks to explain, why property rights are stringently protected in some instances of property but not in others.8 According to this model, in some cases (‘Tier One cases’), rights do and should take presumptive priority over competing public interests. This occurs when rights, or rather the core values associated with the rights, are challenged by public interest demands that are underpinned by values different in kind. Examples of Tier One cases include property claims according to the common view of property, such as land titles, patents and similar individual interests.9 In other cases (‘Tier Two cases’), where the same core values underpin both the claimed right and public interest demand, then no presumptive priority is afforded to the right or public interest. Logically, this is because there can be no question of priority when the same value is in dispute. Tier Two cases relate to the operative view of property, and typically include cases concerning environmental laws and zoning or planning control.10 Whether or not one can accept that two different accounts of property exist in this way, it is important to note that Underkuffler commits herself to a view of rights (and interests) as reason dependent. In line with this approach, it is the quality of the reasons underlying the property right that are determinative of property rights disputes. This approach has considerable merit in the context of property rights because we know that property rights exist not for their own sake but because they facilitate

4See, eg, the approach adopted by James Harris. Property and Justice (Oxford, Clarendon Press, 1996).

5See Underkuffler, n 3 above, 87–94.

6This latter view of property more closely reflects our view of property as a bivalent concept encompassing certain essential public functions.

7See section 2(d) below.

8Underkuffler, n 3 above, ch 6.

9See, eg, Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982).

10See, eg, Lucas v South Carolina Coastal Council, 505 US 103 (1992).

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certain states of affairs. This much was considered in the two preceding chapters.

At this stage it might be sufficient to adopt Underkuffler’s operative view of property because it is a convenient fit with our bivalent view of property. Both accounts of property possess the capacity to adapt existing rights to meet certain public interest demands, and in the present context of resource use and environmental law this might be good enough. However, we would go further and suggest that there is little reason for affording private claims presumptive priority in general. First, as we will establish below, there is nothing about rights per se which justify them being prioritised over public interest claims. Secondly, adopting a bifurcated view of property seems to raise the unnecessary spectre of classification problems. This is because challenges can always be raised about whether the operative facts of a dispute instantiate one normative premise or another. In Underkuffler’s own terms, do we treat a particular dispute as a matter to be determined by either the common or operative conceptions of property? It certainly seems probable that in any given case, both of these conceptions of property are capable of applying to the dispute, especially given the plurality of values that property rules advance. Such classification problems present great difficulties in the practical resolution of property and legal disputes more generally.11 For these reasons, we are not content to present the regulation of natural resources or the environment as a special case of property rights. Rather we are locating them squarely within an institution of property, an institution that structurally requires them to be regulated in a particular way.

In order to justify why rights in Tier One cases (traditionally strong property claims) enjoy presumptive power, Underkuffler presents a theoretical and empirical defence of the presumptive power of rights. Her principal argument is that if rights are to have any significance at all then they must enjoy a certain threshold protection against competing social goals.12

11A recent and important example of classification problems arose in the context of the EC-Chile Swordfish dispute. Here, Chile regarded restrictions on the access of EC fishing vessels to its ports to be a matter determined by the conservation and management rules set forth in the Law of the Sea Convention. The EC regarded the restrictions as an infringement of trade rules under the WTO. The characterisation of the dispute as either a conservation or trade matter would have practical implications for both the determination of the correct fora and the application of substantive international law. See further A Serdy, ‘See You in Port. Australia and New Zealand as Third Parties in the Dispute Between Chile and the European Community Over Chile’s Denial of Port Access to Spanish Fishing Vessels Fishing for Swordfish on the High Seas’ (2002) 3 Melbourne Journal of International Law 79.

12Even if we were to concede that rights necessarily have some prima facie weight, if we look behind the surface appearance of any right, to the reasons that justify the claim, then such weight matters little. As Raz observes rights have value, not because they protect individual self-interests, but because of the value the right secures for others. See nn 25–27 and the accompanying text.

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Here she draws upon Dworkin, who famously argued that rights give individuals the power to block policies based upon impermissible considerations.13 Thus rights are ‘trumps over some background justification for political decisions that states a goal for the community as a whole’.14 Both Dworkin and Underkuffler provide an escape route, which permits rights to be overridden where there are sufficiently compelling reasons.15 Initially, Dworkin limited this to circumstances when the rights of other individuals were at stake.16 However, he later seems to refine this position and suggests that a consideration is impermissible on the narrower grounds that someone should suffer a disadvantage as a result of who he is or is not, or because others care less for him because of this, eg racist or homophobic grounds.17 Likewise, Underkuffler is careful to stress that the presumptive power of rights is in no way determinative; it merely serves to reinforce the importance that attaches to particular values protected by particular rights. Ultimately, however, this view of rights as ‘trumps’ remains unconvincing. The fact is that rights are rarely, if ever, absolute, and they are frequently subject to a range of qualifications or restrictions in practice. Dworkin’s audacious account strays considerably from the practice of rights, and rights are often limited for reasons that are far wider than Dworkin seems to permit.18 Similarly, Underkuffler does not account convincingly for all cases where the presumptive power of property rights fails despite being faced with interests of a different kind. To save her model of rights, Underkuffler regards these as exceptional cases, cases where private rights are abrogated in ‘the most dire and unequivocal of circumstances’.19 However, to include in this category cases such as Mugler v Kansas, where the previously lawful operation of a brewery was curtailed under prohibition laws is clearly to afford too much latitude to the exceptional nature of such interests.20 It also runs counter-intuitively to the point that both rights and interests are reason dependent, something which Underkuffler is otherwise keen to emphasise. Indeed, as Underkuffler concedes, perceptions of property are socially constructed and so susceptible

13R Dworkin, Taking Rights Seriously (London, Duckworth, 1977) xi.

14R Dworkin, ‘Rights as Trumps’ in J Waldron (ed) Theories of Rights (Oxford, Oxford University Press, 1984) 153.

15Ibid 191. Underkuffler, n 3 above, 67.

16Dworkin, n 13 above, 194.

17Dworkin, n 14 above, 161–2.

18See the criticisms by R Pildes, ‘Why Rights are not Trumps: Social Meanings and Expressive Harms and Constitutionalism’ (1988) 27 Journal of Legal Studies 725, 729. One might concede that certain human rights (eg, the right not to be tortured) might be considered absolute immunities in one sense of rights intended by Dworkin. However, it seems doubtful that such an approach is appropriate when talking about property rights.

19Underkuffler, n 3 above, 46.

20123 US 623 (1927).

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contributes towards social goals or the ‘common good’. One way to do this is to look at individual interests in terms of collective interests. The idea that interests should be considered at the same level of generality or specificity was advanced by the American jurist, Pound:

When it comes to weighing or valuing claims or demands with respect to other claims or demands, we must be careful to compare them on the same plane. If we put one as an individual interest and the other as a social interest we may decide the question in advance in our very way of putting it.23

Pound did not necessarily commit himself to transforming individual interests into general interests, although he preferred this approach:

In general … [one should] put claims or demands in their most generalized form, ie, as social interests, in order to compare them. … When we have recognized … an interest, it is important to identify the generalized individual interest behind and giving significance and definition to the legal right. When we are considering what claims or demands to recognize and within what limits, and when we are seeking to adjust conflicting and overlapping claims and demands in some new aspect or new situation, it is important to subsume the individual interests under social interests and to weigh them as such.24

Pound’s primary concern here is with process, rather than the intrinsic quality of the interests. It is simply concerned with ensuring that like is treated with like, thereby ensuring due and equal consideration is given to competing interests.

A variation on this approach can be found in the work of Joseph Raz, which is much more explicit in its portrayal of individual interests as collective interests. In his detailed consideration of rights, Raz rejects the idea that it is merely the interest of the right holder which justifies the right.25 He points to the well-noted failure of rights to match precisely interests, and argues that the weight of a right depends upon the value the right secures for others, not merely the right holder.26 If we are to give weight to rights then we must do so in terms of their value to others. This approach is persuasive because we can understand that rational agents within a community are only likely to accept individual rights that they would desire for themselves or that do not operate to their own detriment. Rights as distinct from interests are claims that can be universalised, so the members of a community that endorses any right must be willing to accept the

23R Pound, ‘A Survey of Social Interests’ (1943) 57 Harvard Law Review 1, 2–3. See also Justice Blackmun’s dissenting opinion in Oregon v Smith, 494 US 872, 910–11 (1990).

24Pound, Ibid.

25See generally J Raz, ‘Rights and Individual Well-Being’ in J Raz, Ethics in the Public Domain (Oxford, Clarendon Press, 1994) 29.

26‘Though he gains from the benefit the right secures to others, the weight and importance of the right depends on its value to those others, and not on the benefit that this in turn secures to the right-holder.’: Ibid 36–7.

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consequences of the right’s acceptance. By extension, this view of rights/ interests suggests that private property rights are valued not because they are manifestations of individual self-interests, but because they serve to benefit the broader community.27 Thus, private property rights have weight because they serve to secure social order or increase the efficient use of resources or provide an incentive to productive use of things.

Two observations may be made about this approach. First, although the interests underpinning individual rights may be recast in terms of collective interests, there is nothing about this approach that commits us to the position that public interests that will always trump interests that are initially cast in terms of individual or private rights. This approach is open as to the weight that particular interests may have, so it is quite conceivable that certain types of interest with more immediately direct benefits to individuals, such as respect for individual political autonomy, will be given priority over the interests of a majority. Ultimately, any question of priority will turn on the meaning and content of the interests put forward in each particular case, and on the view of a community about what comprises the ‘common good’. Second, what makes this approach convincing is not the fact that it compels us to a particular vision of the common good.28 Rather, Raz’s view of rights is compelling because it structures the reasons for respecting the right in a particular way; it does so by recasting the right in terms of an universalisable interest, which as a matter of practical reason is more compelling than relying on a claim based exclusively upon mere self-interest. This point is important because it alludes to those factors which are truly relevant in determining the weight to be given to particular claims about private rights and public interests. It suggests that compelling reasons are those that are capable of being framed in universal terms, rather than left as mere self or sectional interests. Further consideration is give to such reasons in section 3(b) below.

(d) A Determinable Relationship between Rights and Interests

Our final way of looking at the relationship between rights-based claims and public interest demands is to view their relationship as determinable. This means that a variety of factors such as the nature of the right,

27See ch 2, s 3(e).

28It might conceivably do this, and Raz is certainly of the view that most rights are intended to serve the ‘common or general good’: see Raz, n 25 above, 52. The term ‘common good’ as used by Raz refers not to the sum of individual interests, but to interests that serve the good of the community in a non-exclusive way. Likewise, Pildes stresses that the value of this approach (the ‘structural approach’) is to make it clear that the point and justification of constitutional rights is not to enhance autonomy or atomistic self-interest, but rather to realise various common goods. See Pildes, n 18 above, 732.

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the nature of the public interests demand, their underlying reasons and contextual application will be determinative of the outcome of any dispute. This approach rejects that there is any a priori quality of rights or of public interest demands that gives them strict priority in law. However, it does not preclude some evaluation of the factors relevant to determining the relationship between rights and public interests as they may arise in potential cases.

As seen above, the idea that rights or public interest claims must be weighted independent of the interests that they embody is quite misleading. Instead it is suggested that it is the pragmatic and dialectical nature of legal process which dictates where burdens lie. Initially, any such weighting that results from the use of the term ‘right’ or ‘public interest’ should be regarded merely as the product of propositional discourse.29 Consider the following example: ‘B cannot do x because it will breach A’s right’. It is suggested that this rights-based claim merely serves to structure any subsequent discourse about the validity of B’s actions. So, if B wishes to justify his action, then he must either claim that no such right exists, or that the right does not apply in the present circumstances, or that there is an exception to the right. In the absence of any definition of x, or of A’s right, there is at this stage no indication of the strength of the legal position of either A or B. This is contingent on the meaning of the claimed right and the context within which it arises. Stated in the abstract, the claim by A merely has propositional weight. This means that A’s claim has no greater weight than the following: ‘B cannot do x because it will not be in the public interest’. Again any counterclaim will require B to assert that there is no such interest, or that it does not pertain to the present dispute, or that there are exceptions to it. Thus it falls upon some other interested party to raise an effective challenge to A’s claim. The point is that, at least in legal terms, no special weight can flow from the simple assertion that something is a right. For example, the right not to be subject to inhuman of physically degrading treatment has weight because of the values that underpin the right, not because the claim is framed as a right. Only once a right or public interest demand is given flesh can we begin to evaluate it and to explore its relationship with other rights and public interests. In this sense, the terms ‘right’ and ‘public interest’ operate as macros, linking a particular claim to a complex milieu of arguments and considerations which are relevant to the determination of the claim in the immediate

29 As MacCormick observes, it would be ‘absurd if it were the case that a party relying on [the conditions or a rule] bore the burden of first imagining and then disproving every possible defeating condition that might make these inoperative.’ N MacCormick, Rhetoric and the rule of law. A theory of legal reasoning (Oxford, Oxford University Press, 1995) 244.

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case. If rights or public interest have weight, then it is because they tap into existing value structures embodied in legal systems.

If a person makes the claim that x is a protected right, then this is at its most immediate level a legal claim: a claim that is countenanced by law. Of course, it may be underpinned by extremely important moral interests. However, in strictly legal terms, and apart from any indeterminacy inherent in that particular claim or allowing for any prescribed scope for resorting to ‘extra-legal values’ in determining that claim, the claim remains one that is to be governed by legal rules. And if we look for a general rule of law that addresses the weight of rights-based claims, we should be surprised to find a general rule that ascribes rights in the abstract any particular weight or even presumptive weight. Indeed, if one cares to reflect upon property law, one is likely to find that basic property rules are quite agnostic about the weight of rights and interests. Take for example, Article 1 of Protocol 1 of the European Convention on Human Rights, which sets forth a right to property:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Clearly, there is no explicit weight attached to either rights or interests. Indeed, exploration of the origins of this provision reveals that this right is rooted in a view of property having a strong social function.30 Further investigation of this form of property shows it to have parallels with constitutional approaches to property that are common to continental legal systems, no more so evident than in Germany, where Article 14(2) of the Grundgesetz states that ‘[o]wnership entails obligations. Its use should also serve the public weal’. Alexander argues that the German view of property is one with a strong civic and moral dimension. Thus

property is protected insofar as it serves the purpose of providing the material foundation for maintaining the proper social order, defined according to a scheme of values rather than in terms of the satisfaction of individual preferences.31

30 See, eg, the comments by Azara (Italy), Travaux, Vol V, 246, and the comments by Bastid (France), Travaux, Vol VI, 116: cited in A Riza Çoban, Protection of Property Rights within the European Convention on Human Rights (Aldershot, Ashgate, 2004) 132–3.

31 G Alexander, ‘Constitutionalising Property: Two Experiences, Two Dilemmas’ in J McLean (ed), Property and the Constitution (Oxford, Hart, 1999) 88, 95.

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This further suggests that in many legal systems the relationship between private property rights and public interest demands is simply not reducible to a crude prima facie weighting of ‘rights’ or ‘interests’.

It may be appropriate to look for some detailed account of the relationship between rights and interests in specific legal provisions. Thus for example, one might find an absolute prohibition on the possession of handguns or a high degree of protection afforded to the home. It is perhaps this particular resolution of private rights-based claims and public interest demands one way of the other which has mistakenly resulted in the induction of a more general conclusion about the weight of rights and interests. However, one should not assume that because rights have been afforded weight in one particular context, or even several legal contexts, that they necessarily have prima facie weight in general. An exhaustive review of property rules does not reveal any general disposition of private and public interests. Moreover, this approach ignores the dynamic and contingent nature of legal rules. The institution of property comprises a constellation of rules, including those based upon private rights and public interests. Although the application of this constellation of rules to any given dispute occurs at a single point in time, this does not mean that the delineation of rights and interests is to be regarded as static. We might concede that, to date, the evolution of property rules has tended to reflect a stronger concern for private rights. However, these concerns are neither necessary nor constant. For example, a typically strong respect for private property rights is evident in the case of Monsanto v Tilley, where the landowner sought and received an injunction against protestors threatening to trespass upon his land and dig up genetically modified crops.32 The claim by the protestors to be acting in the public interest so as to protect persons from the harm that genetically modified crops might cause was rejected. However, this may be readily contrasted with provisions under the EC Habitats Directive.33 For the purpose of ensuring biodiversity through the conservation of natural habitats and wild flora and fauna, the EC Habitats Directives requires States to take measures ‘designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora’.34 On the basis of certain special physical criteria set out in the Directive, States are required to designate a number of special areas of conservation (SAC). In these SACs, States shall establish necessary conservation measures, involving where appropriate, management plans and other control mechanisms.35 Although the Habitats Directive does not address the issue

32[2000] Env LR 313.

33Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora: [1992] OJ L206/7.

34Art 2.

35See Art 6.

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of property rights squarely, it is clear that its measures may significantly limit the property holder’s autonomous right to use and manage his property. Furthermore, the legal burden falls upon the owner or developer to show that any proposed use does not have a significant adverse affect on the SAC. What may also be significant is that limitations on private rights should be advanced through public fora. Thus in Monsanto v Tilley, the Court of Appeal observed that the appropriate channel of redress for the protestors was through the Department of the Environment or judicial review of its licensing decision.36 Similarly, conservation measures and controls over property within an SAC under the Habitats Directive are mediated through a public planning and consultation process. In any event, what is clear is that new constellations of rights and interests can evolve within property institutions and there is nothing inherent in the quality of rights or interests that alone dictates how this will proceed.

3. DELIMITING JUSTIFICATIONS

There is no presumptive weight attaching to either private rights or public interests purely as a matter of legal form. The resultant contextual approach to the determination of disputes between private rights and public interests is consistent with a large body of jurisprudence.37 So, in any number cases we can point to decisions that have ultimately prioritised public interests over private interests.38 Similarly, in any number of cases we can point

36[2000] Env LR 313, 338 (Mummery LJ).

37This point must be caveated by observation that the disputes do not always readily fall into simple public/private disputes. In many cases, such interests may underpin the dispute or form the object of the parties’ claims, not form part of the immediate dispute about the law. For example, whilst US courts often address the resolution of conflicts between public and private interest squarely, other legal systems tend concern themselves with the process of decision-making and whether or not a decision-maker vested to resolve the initial conflict has been reasonable in his evaluation of the interest at play. See, eg, R (Tesco Stores Ltd)

vSecretary of State for Environment Transport and the Regions, [2000] All ER 1473. This is the approach adopted by the ECHR, with its procedure of deference to national bodies in determining the most appropriate balance between private rights and public interests. See James

vUK (1984) 6 EHRR CD 475. It has reiterated its respect for national determinations of the public interests except where they are manifestly unreasonable in all subsequent decisions. See J Frowein, ‘The protection of property’ in R St J Macdonald, F Matscher, and A Petzold,

The European System for the Protection of Human Rights (London, Nijhoff, 1993) 515.

38For example, Attorney-General and Newton Abbot Rural District Council v Dyer [1947] Ch 67; Grape Bay Ltd v Attorney General of Bermuda [2000] 1 WLR 574; R v Oxfordshire CC, ex p Sunningwell Parish Council [2000] 1 AC 335; James v UK (1984) 6 EHRR CD 475; Illinois Central Railroad Company v Illinois 146 US 387 (1892); Penn Central Transportation Co v City of New York (1978) 438 US 104; Kelo v City of New London, 545 US 469 (2005); Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; Newcrest Mining (WA) Ltd v Commonwealth of Australia (1997) 147 ALR 42. This may also be evident in prescriptive measures. Thus, the Banking (Special Provisions) Act 2008 nationalised Northern Rock building society in order to protect both account holders and the banking system from the risk of the bank collapsing.

Delimiting Justifications 133

to decisions that have prioritised private interests over public interests.39 Although we consider the relationship between private rights and public interests demands to be determinable, this does not mean that only an ex post facto rationalisation of the relationship on a case by case basis is possible. In the preceding sections we have alluded to some of the factors that are relevant to the process of resolving legal claims, such as the degree to which a claim in respect of property can be universalised. These factors shall now be expanded upon. Recalling our analysis of excludability in chapter 2, we relied upon Gray’s explanation of how physical, legal and moral factors constrained the application of private property rights by placing limits on what can be excluded. If these factors limit excludability, then they must also play a decisive role in shaping the interface between private property rights and public interest demands because the latter are essentially non-exclusive considerations determining the use of property.

(a) Physical Factors that Shape the Relationship between the Private and Public Functions of Property

There are many apparent links between the physical qualities of a resource and the form its regulation takes. As Canute learned, there is little point in trying to rule contrary to the laws of natural science. And so we do not lay down laws that require waves to cease ebbing or flowing. We might legislate so as to prevent coastal erosion, but we do not generally require people to do things that are quite beyond their control. Being more pragmatic, as any economist would agree, the condition of scarcity is generally a precondition for the emergence of private property rights.40 And so we do not implement private property rights for resources that are not depleted through our consumptive pursuits. Of course it may be pointed out that scarcity results from human use, but it is also the product of the fact that a resource is finite and/or non-renewable. These two examples illustrate, first how the physical qualities of a resource may place absolute parameters on the possible types of regulatory regime imposed upon it, and second, how the physical attributes of a resource provide some necessary or sufficient reason for the regulation of a resource in a particular way.

It is a common theme in property that when a thing cannot be physically circumscribed then it becomes difficult if not impossible to reduce it to private property.41 There is little point in giving exclusive rights to that

39Wood v Leadbitter (1845) 13 M & W 838; Southwark Borough Council v Williams [1971] 1 Ch 734; Loretto v Teleprompter Manhattan CATV Corporation, 458 US 419 (1982); Nollan v California Coastal Commission, 483 US 825 (1987).

40R Cooter and T Ulen, Law and Economics, 2nd edn (Reading, Massachusetts, AddisonWesley, 1997) 10.

41See Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479.

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which cannot be excluded to others. Indeed, as we show in the following chapter, the perception that the open seas were boundless underpinned the legal regime of the freedom of the high seas (an open-access regime) for centuries and served as a bulwark against measures of (private or exclusive) appropriation by coastal States. We might also observe that airspace is generally free of property rights,42 and note that neither mere facts nor the ‘news’ may be subject to property rights.43 This conditioning influence of physical factors has since been extended to outer space and other celestial bodies.44 In all of these cases the difficulty of physically excluding others is a component reason for the non-application of private property rights. Of course, some of these examples might be recast as authority for the position that property rights are limited by moral considerations such as the need to maintain lines of communication and freedom of expression. However, the existence of moral reasons for not excluding others does not deny the influence of physical qualities of the object of regulation.

This leads us to consider the relationship between facts and normative judgements, which should not be conflated. One of the most basic precepts in jurisprudence is the idea that the fact of a thing does not entail its regulation in a particular way.45 For example, the syllogism ‘John is a man, therefore John must be treated with dignity’ is incomplete. It lacks the major premise that contains a normative statement that might read as follows: ‘all men must be treated with dignity’. Formally speaking, the major premise is independent of the fact that John is a man. However, we surely can observe that the fact that because John is a man, and that men possess certain attributes, is reason for the existence of the major premise. The influence of such facts, which include the physical qualities of the object of regulation, should not be underestimated. This can be illustrated with an example. In the State of Eden there is a single source

42Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479.

43Sports and General Press Agency, Ltd, v ‘Our Dogs’ Publishing Co Ltd [1916] 2 KB 880. See also International News Service v Associated Press 248 US 215 (1918). Although the court held that a news agency could protect their reporting of news, this was based upon commercial considerations rather than any sense that the news was a property right. Holmes J, dissenting, pointed out that ‘[p]roperty depends upon exclusion by law from interference, and a person is not excluded from using any combination of words merely because someone has used it before, even if it took labor and genius to make it’ (at 246). Brandeis J, delivering a strong dissenting opinion, was critical of the implications of the decision being to create a form of property in news.

44See Art 11(3) of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979. (1979) 18 ILM 1434. Whilst this may be a desirable political state of affairs the simple fact is that enforcement of property rights in outer space would be impossible.

45See D Hume, A Treatise of Human Nature, LA Selby-Bigge (ed) (Oxford, Clarendon Press, 1978) 469.

136 Reconciling the Private and Public Functions of Property

the ‘attribute’ of the resource that contributes to biological diversity is reserved from the exclusive control of the property holder to the extent that it is necessary to ensure that the resource is not used in a way that depletes biological diversity. Some more detailed consideration of biodiversity is necessary at this point because it not only illustrates how physical factors generate reasons for particular legal arrangements, but because all living resources contribute in some degree to biodiversity. This means that biodiversity considerations now form a key aspect of most natural resource regimes.

The protection of biodiversity is concerned with the protection of diversity within species, between species and of ecosystems.48 So strictly speaking biodiversity is an attribute or quality, rather than the actual physical resource itself.49 It is a quality that attaches to the whole. This means that the focus of regulation is on variability and diversity among components of the ecosystem, rather than on the components themselves. Presented thus biodiversity bears the hallmarks of a common pool resource and this leads to some unique regulatory challenges. The law on biodiversity must respect the particular interests that the States or the holders of the components of biodiversity have in the actual natural resource that forms a component of biodiversity, whilst at the same time ensuring the wider (public) interest in conserving variability or, perhaps, more specifically genetic potential. The public interest in the conservation of biodiversity and the complex nature of the threats to biodiversity require new approaches to the regulation of natural resources; a regulatory regime that is more sophisticated than mere private property. Under international law, this is achieved through the Convention on Biological Diversity (CBD).50 The CBD starts by recognising the principle of the permanent sovereignty of States over their natural resources, that is to say exclusive rights over their territory and the resources therein.51 However, this is then qualified by a series of more detailed requirements of conservation and sustainable use.52 One of the most significant provisions requires States, where appropriate, to take measures to conserve biodiversity in situ.53 Here, the CBD does not require or preclude the use of property rights in any particular form. However, what it does require is a complex balance between sovereign rights and conservation duties, or between exclusive use rights and the

48See further ch 6, s 4(a).

49L Glowka et al, A Guide to the Convention on Biological Diversity (Cambridge, IUCN, 1995) 16–24.

50The Convention on Biological Diversity 1992 (1992) 31 ILM 818.

51Art 3.

52Arts 6–20.

53Art 8.

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preservation of certain basic or essential interests.54 What it also points to is that the components of biodiversity may not be exhausted where this will result in a loss of biodiversity. These provisions place significant limitations on how living natural resources are to be regulated and require certain ‘public interest’ constraints on the ownership of the components of biodiversity.

What is distinctive about property rules is that they constitute relationships between people in respect of things. Thus the rem is a necessary component of the legal relationship, albeit a latent one. This means that the normative legal relationship must be compatible with the thing regulated. The above examples go some way to showing how the physical properties of a given rem establish necessary or sufficient conditions for establishing a moral or legal limit on excludability. Or, put another way, private right-based claims and public interest claims cannot be sustained in the face of countervailing reasons that flow from the basic physical qualities of the object of property rights. The above examples also show that in practice complex accommodations between the two will result from the physical qualities of most natural resources. This sophisticated balance is further complicated by the introduction of legal and moral factors.

(b) Legal Factors that Shape the Relationship between the Private and Public Functions of Property

The day to day operation of law as a practical discipline may also determine, or influence in a significant way the relationship between private rights and public interest. By way of clarification, we are not concerned here with specific or operative legal rules: rules that explicitly define the legal weight to be given to a particular interest.55 Although such rules may be important in practice, they operate in a particular way and apply

54It is notable that this balance is not static. For example, Art 1 of the International Undertaking on Plant Genetic Resources described plant genetic resources as ‘a heritage of mankind and consequently should be available without restriction’: Resolution 8/83, Twenty-second Session of the FAO Conference Rome 1983. This broadly categorises plant genetic information as common property. However, since then private property rights have been much more prominent in measures to regulate and facilitate access to genetic information, arguably so as to provide commercial incentives to research. By 2001, the Undertaking had been overtaken by the International Treaty on Plant Genetic Resources. Available online at <http://www.fao.org/ag/cgrfa/itpgr.htm#text> accessed 14 October 2008. Implicit in Art 12 is the idea that genetic information will be propertied through intellectual property rights, albeit subject to guarantees that this shall not limit access to the resource or their genetic parts or components.

55Such an approach was considered in ch 3, section 2(b)(i). See, eg, the provisions of the Commons Act 2006. Also Gray, n 47 above, 273–80.

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on a case-by-case or limited basis. What we are concerned with are the general attributes that legal rules possess and which influence how the balance between private rights and public interests is determined. It is suggested that there are two aspects of legal rules that are determinative of how private claims and public interest demands may be put forwarded and resolved. First, limits may flow from limits in the exercise of legal authority per se. Most crucial here is how limits in the exercise of jurisdiction may limit the scope for certain types of proprietary claim. For example, the absence of sovereignty and so any guarantee of rights to exclude would appear to preclude claims of private property.56 Secondly, law operates as a special case of practical reasoning. Practical reason is concerned with the reasons that justify what one ought to do and so give rise to action. Practical reason is guided by the fact that reasons possess certain qualities that make them more or less compelling. Typically, these reasons include whether or not a claim can be universalised, whether or not it is consequence sensitive, whether it is reasonable, and whether or not it is coherent.57 So, as a department of practical reason, it follows that legal arguments (and perforce legal rulings) must also possess the same qualities that make reasons in general more or less compelling.58 By extension, the extent to which a private rights-based claim or public interest demand possesses such attributes will render it more or less compelling.

Let us consider limits to jurisdiction and legal authority first. Property rights are rights in rem, rights which are good against the entire world and not just against specific persons. An important aspect of this is the need for the State to act as the guarantor of title.59 Put another way, property rights (at least in positive law) cannot exist without a supporting legal

56However, we should also be aware of the limits that the principle of agency and reciprocity may place upon the extent of property rights. See ch 3 above, section 2(b)(iv). Thus most legal systems prohibit the ownership of persons, as in the case of Art 4 of the UK Human Rights Act 1998. They also seek to ensure the autonomy of individuals to according to free will. See eg, Royal Bank of Scotland v Etridge (AP) [2001] UKHL 44. Also K Barker, ‘Theorising Unjust Enrichment’ (2006) 26 Oxford Journal of Legal Studies 609, 624. Most legal systems place limits on transactions that are inconsistent with the notion of reciprocity (understood as requiring some degree of equivalency in transactions). This principle underpins contract law and justifies control of monopoly practices. See, eg, I Macneil, ‘The Many Futures of Contracts’ (1974) 47 Southern California Law Review 340, 347.

57These criteria are drawn from the work of Neil MacCormick, n 29 above.

58Arguably this form of constraint on the determination of private right-based and public interest demands could be regarded as a general moral limit. However, the peculiarities of legal reasoning as distinct from the requirements of practical reason more generally suggest that it is better consider as a peculiarly legal factor.

59For early recognition of this see Locke, Two treatises of Government (1690), ed JM Dent (London, Dent, 1924) vol II, s 5, 45.

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system.60 Typically this is domestic law, although in exceptional cases international law may serve this function. More specifically, property rules are dependent on the notion of territorial sovereignty. This is evident in the lex situs rule, which provides that property relationships are determined by the law of the place where the property is located.61 One consequence of this has been a reluctance to accept the existence of private property rights arising beyond the territorial authority of States.62 A brief overview of some of the cases in which such rights have been claimed, reveals the tendency or need to subsume such claims within a territorial domestic legal order. Where this occurs it is worth noting that such claims tend to be limited or based upon certain grounds. This poses particular problems for the possibility and conditions under which property rights in marine resources may arise, as most occur in zones where such authority is qualified (the Exclusive Economic Zone) or in areas beyond sovereignty (the high seas).63

Early cases suggest a degree of uncertainty as to the whether or not property rights could arise beyond the limits of territorial sovereignty. In Jacobsen v Norwegian Government, the Supreme Court of Norway held that the Government was legally obliged to uphold Jacobsen’s proprietary claim arising in the territory of Jan Mayen, even though it arose at

60This view is very much in the positive legal tradition of Bentham, Hume and Rousseau. ‘[T]here is no such thing as natural property … it is entirely the work of law. … Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.’; J Bentham, Theory of Legislation, trans CK Ogden and & R Hildreth (London, Routledge, 1931) 111–13 . ‘Property is nothing but those goods, whose constant possession is establish’d by the laws of society; that is, by the laws of justice. … Tis very preposterous, therefore, to imagine, that we can have any idea of property, without fully comprehending the nature of justice, and shewing its origin in the artifice and contrivance of man.’: D Hume, A Treatise of Human Nature, ed LA Selby-Bigge (Oxford, Clarendon Press, 1958) Pt 2, § 2, at 491. Jean-Jacques Rousseau, Discourse on the Origin and Foundation of Inequality Among Men, reprinted in Jean-Jacques Rousseau, The Social Contract and Discourse on the Origin of Inequality, ed LG Crocker (New York, Washington Square Press, 1967) 211. There is an alternative view of property in a natural law tradition, which shows the institution to have preceded the emergence of the State. John Locke, Two Treatises of Government (1690), 2nd edn, ed Peter Laslett (Cambridge, Cambridge University Press, 1960) bk 2, 305–06. For Locke, government was formed to protect property (pp 342–3) and it is as such free from interference from government (p 378). Also, H Grotius, De Jure Belli ac Pacis Libri Tres, trans Francis W Kelsey (Oxford, Oxford University Press, 1925) bk 2, ch 8, § 1, 295; S Pufendorf, De Jure Naturae et Gentium Libri Octo, trans Oldfather (Oxford, Clarendon Press, 1934) bk 4, ch 4, § 14, 555–6. It seems unnecessary to take a position on this matter for we may note that to all intents and purposes, the State has subsumed authority to regulate property at least practically speaking.

61See Inglis v Usherwood (1801) 1 East 515; Re Anziani [1930] 1 Ch 407; Winkworth v Christie Manson & Woods [1980] Ch 496.

62Similar problems may exist with respect to Antarctica, the Deep Sea-bed and Outer Space.

63See further, chs 5 and 6.

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a time before Norway asserted sovereignty over the islands.64 The Court suggested that this would only be justified when acts ‘sufficient to fulfil the conditions for the commencement of an effective occupation had occurred’.65 Although this suggests that the court accepted that private property rights could exist independent of a domestic legal system, this was not explicit in the court’s judgement. Moreover, the whole point of the litigation was to secure recognition of a legal right under Norwegian law. A second example concerns a claim by the American based Polarfront Company in 1927 in respect of its ownership of two fox farms on Jan Mayen which were established before Norway secured sovereignty over the islands.66 Polarfont’s claim was supported by the American government and subsequently recognised by Norway. However, the exact nature of the proprietary interest claimed in this case is also unclear. The US State Department expressed the view that ownership constitutes the use and enjoyment of the property owned to the exclusion of all others in its use and enjoyment.67 Crucially, it noted that this is secured to the owner under the authority of the government exercising sovereignty in relation to the island and its inhabitants.68 However, at the same time they were unwilling to deny that Polarfront lacked proprietary rights in the absence of a territorial sovereign. Clearly, the US Government was torn by two competing versions of property, one under natural law, and another traditionally understood as emanating from the State.69 Ultimately, the practical effectiveness of such rights could only be guaranteed through positive law, and it should be emphasised that the litigation was a necessary step towards this.

More significant, perhaps, is the result of protracted negotiations to resolve the problem over competing claims by American, British, German, Norwegian and Russian companies to significant coal deposits on the Spitzbergen archipelago. In order to resolve the conflicting private claims in territory regarded as terra nullius, the interested nations agreed to the Treaty on the Spitzbergen Archipelago.70 This treaty provided that title to resources could only be secured by following the procedures set

647 ILR 109.

65Ibid 111.

661 Hackworth, Digest, 475–76.

67Letter from the Department of State to Mr Ekerold, 16 Feb 1927. Quoted in Hackworth,

Ibid.

68Ibid.

69On the one hand, it argued that the neglect of a government to sanction and protect such rights made it impossible for the company to acquire title to property as ordinarily understood. On the other hand, it was unwilling to condemn the company as a mere trespasser, arguing that the company’s labours had created a property right, if not a title as ordinarily understood: Ibid 476.

702 LNTS 7.

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forth in the treaty and its annex. In order to mediate any conflicting property claims, a tribunal was founded, and its decisions ultimately led to Norway recognising a number of pre-existing ownership claims.71 Again it must be emphasised that title to private claims was only possible after Norwegian sovereignty over the islands was recognised. The negotiating parties made it clear that any solution that recognised property rights without first establishing a sovereign authority was unworkable.72 This is echoed in the opinion of a number of leading authorities, such as Lauterpacht and Brownlie, who are also sceptical as to the existence of property claims without the sanction of States.73

In a slightly different context, one perhaps best viewed in the context of a widening recognition of indigenous rights, Australia has had to address the matter of ownership claims predating the annexation of Australian territory and the extension of the common law thereto.74 In the case of Milirrpum v Nabalco Pty Ltd, the court rejected the plaintiff’s claim that they possessed some form of native title that predated the settlement of the lands of New South Wales by the Crown.75 Although Blackburn J. did not explicitly refer to terra nullius, this seems implicit in his finding that from the moment of the foundation of a settled colony, English law applied in its entirety to the whole of the colony.76 It followed that as there was no doctrine of communal native title in the common law, then there was no question of recognising the plaintiff’s claims.77 In Mabo v Queensland (No 2), certain pre-existing claims to land were recognised.78 However, the decision turned not on the issue of whether the land was terra nullius, but on a rejection of the claim that the acquisition of sovereignty, through

71These are noted in MF Lindley, The Acquisition and Government of Backward Territory

(London, Longmans Green and Co, 1926) 320.

72FK Neilsen, ‘The Solution of the Spitzbergen Question’ (1920) 14 AJIL 232, 233. Also R Lansing, ‘A Unique International Problem’ (1917) 11 AJIL 763, 770–71.

73Both assert that only States may claim title to territory, so excluding the establishment of property rights outside of the State system. H Lauterpacht, Oppenheims International Law, 6th edn (London, Longmans Green and Co, 1947) 507; I Brownlie, Principles of Public International Law, 5th edn (Oxford, Oxford University Press, 1998) 174. See also Gerstenblith, who notes that ‘it is clear that the nation defines property as an inherent incident of its sovereignty and utilizes its legal regime to protect it.’: P Gerstenblith, ‘The Public Interest in the Restitution of Cultural Objects’ (2001) 16 Connecticut Journal of International Law 197,

235.According to Singer, property imposes rights on the owner and responsibilities on nonowners, which are enforced by the government. Therefore private property cannot exist without a government to enforce the system. JW Singer, ‘Sovereignty and Property’ (1991)

Northwestern University Law Review 1, 47.

74See R Van Krieken, ‘From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship’ (2000) 23 UNSW Law Journal 63.

75(1971) 17 FLR 141.

76Ibid 244.

77Ibid 262.

78(1992) 175 CLR 1.

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whatever means, automatically resulted in the extinction of native title.79 Underpinning this was a finding that the territory was not absent some form of native legal system, even if it was incomparable to the common law.80 In justifying this position, Brennan observed that if international law had rejected the idea that inhabited land could form terra nullius, then the common law could not retain an antiquated view of other legal cultures, ignoring peoples ‘low in the scale of social organization’.81 As such Mabo sidestepped the possibility of property rights in a legal vacuum, a matter which remains problematic. As a post-script to this case, it may be observed that indigenous people’s claims have now been more effectively secured through the adoption of the Native Title Act 1993.

These examples demonstrate the difficulty of asserting proprietary claims in the absence of some lex situs or supporting legal system. In cases where property claims arise in a legal vacuum, States and tribunals have either rejected the suggestion that there is a legal vacuum, or subsumed such claims within positive legal structures in order to achieve certainty and formal recognition of the rights.82 This suggests that in areas beyond sovereignty strong private property claims will prove difficult to sustain, simply because there is no mechanism for securing exclusion. An extension of this approach, which will be explored in the next two chapters, is that when sovereignty is challenged or qualified there is a strong tendency to draw upon a wide range of values to resolve claims and to resort to more inclusive use regimes.

To the extent that property claims are advanced in legal form, they must do so according to what is acceptable as part of legal discourse. In both adversarial and inquisitorial legal systems, law possesses a dialogical character moving from assertion to denial, and assertion to counterassertion, to a point when either the assertions are exhausted or further degrees of iteration are barred.83 We can observe this process at work in any claim concerning the use of property and natural resources. It is an inherent quality of law as a social process, but one that results in a

79Ibid [53] (Brennan J).

80Ibid [38].

81Ibid [41]–[43].

82This process has the propensity to destroy or override much of the substance of the earlier claims, unless they are couched in terms appreciable by the superseding legal system. This is illustrated by the Treaty of Waitangi 1840, which provided for the basis for Crown authority in New Zealand. Art II provides that ‘Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession’. The treaty is available online at: <http://www.waitangitribunal.govt.nz/treaty/english.asp> accessed 15 October 2008.

83MacCormick, above n 29, 239.

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tension between legal certainty or determinacy and adaptability. Even if it is desirable that law is systematic and ordered, it may be observed that no legal system is complete or unchanging. First, one can observe the association of absolute rules with totalitarianism and uncritical adherence to the law. So, it is a positive state of affairs that law is an arguable field because it means that its rules and propositions are constantly tested and exposed to critical scrutiny. Second, rules do not exist to cover every eventuality and existing rules may change to meet new values. Even if we could prescribe against every future contingency and lay down the law against a certain and immutable framework of values, it seems that the indeterminacy of language presents another obstacle to certainty or finality in law.84 For good reason such precision or finality may be undesirable, and rules are frequently drafted in the form of open-ended or general rules that are capable of applying to similar but distinctive factual circumstances in varying degrees. The point is that these variables give law a defeasible character.85 This refers to a quality of rules that entails their defeat, disapplication or qualification under certain conditions. This generally occurs when circumstances reveal there to be overriding reasons for not applying the normal rule. Yet the function of defeasibility is more than simply explaining the contingency of legal propositions. As Epstein observes, defeasibility allows for the sequential development of basic propositions into far more complex rule structures.86 Through the iteration and recognition of qualifications and exceptions law is thereby capable of being calibrated to the complex realities of everyday life. As was observed above, law has the function of regulating social coexistence in the pursuit of aims and values that are independent of law.87 The defeasible character of law is consistent with our view of law as reason dependent. In part, the determinable relationship between private rights and public interests is a symptom of the defeasible quality of law, albeit a necessary one that allows law to adapt to meet social aims and goals.

That law comprises a range of defeasible concepts does not mean that it is reduced entirely to a discretionary or atomised institution.88 As Hart

84HLA Hart, The Concept of Law, 2nd edn (Oxford, Clarendon Press, 1994) ch VII, s 1. Also B Bix, Law, Language, and Legal Determinacy (Oxford, Clarendon Press, 1993).

85HLA Hart, ‘The Ascription of Responsibility and Rights’ (1948–9) 49 Proceedings of the Aristotelian Society 171, 174. See also GP Baker, ‘Defeasibility and Meaning’ in PMS Cacker and J Raz (eds), Law, Morality and Society: Essays in Honour of HLA Hart (Oxford, Clarendon Press, 1977) 26; F Atria, On Law and Legal Reasoning (Oxford, Hart, 2001) esp chs 4 and 5; RS Tur, ‘Defeasibilism’ (2001) 21 Oxford Journal of Legal Studies 355.

86RA Epstein, ‘The Not So Minimum Content of Natural Law’ (2005) 25 Oxford Journal of Legal Studies 219.

87See comments by Lyons noted above, ch 3, p 30.

88JC Hage, Reasoning with Rules. An Essay on Legal Reasoning and Its Underlying Logic

(London, Kluwer Academic Publishers, 1997) 116.

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famously observed: ‘[a] rule that ends with the word “unless …” is still a rule’.89 Legal rules may be arguable, but they must also be structured in a way that gives them meaning. For this reason, there are constraints upon what may validly constitute a legal argument. It is generally accepted that practical reasoning in general and legal reasoning in particular require claims to possess certain attributes that make them compelling.90 Legal claims will stand or fall depending upon both the context of the claim and the quality of the reasoning used to sustain that claim. We know that in any given dispute over the relationship between private rights and public interests, the affected parties will seek to characterise a dispute in some way favourable to their cause (freedom of speech versus protection of public morality; protection of the environment versus development). They will then issue and counter challenge the meaning and application of any relevant rules put forward. In order to resolve these matters requires that we provide reasons, reasons that are compelling, reasons which explain in ways acceptable what has to be done and why. Most immediately these reasons must convince a legal audience, but they should also appeal to the wider plenary legal community. Compelling reasons possess certain characteristics. They must be universalisable. They have to be tested in light of their consequence. They must be reasonable and they must be coherent, in both a normative and narrative sense. These requirements shape how legal claims are made and determine their persuasiveness. These qualities have been explored at length and with great lucidity by Neil MacCormick so need not be rehearsed in too great a detail here.91 However, what can be stressed at this point is that these requirements of legal reasoning are not some arcane criteria; they are the basic requirements of law as taught to students, as practiced by lawyers, and as used by judges to reach decisions. Countless numbers of cases and pieces of legislation display these techniques at work. Such limits of form shape the content of all legal rules and by extension the relationship between public interests and private rights as they are advanced as legal claims. By favouring certain types and quality of argument, these factors play an essential role in delimiting the relationship between private rights-based claims and public interest demands on property.

Universalisation is depicted in recent scholarship as capturing the essential normative character of reasons.92 It requires one to commit oneself to the consequence of one’s decision in all cases; that is to say

89Hart, n 84 above, 139.

90See, eg, R Alexy, Theory of Legal Argumentation (Oxford, Clarendon Press, 1989); MacCormick, n 29 above; Atria n 85 above.

91Above n 90.

92See G Pavlakos, ‘Non-Individualism, Rights, and Practical Reason’ (2008) 21 Ratio Juris 66, 76 ff.

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when the same operative facts arise, the same normative conclusion should follow.93 By requiring that the grounds of a decision be repeated in future similar cases, the requirement commits us to the impartial application of legal rules. It serves to avoid ad hoc or ad hominen decisions. For these reasons it provides the formal basis for a system of precedent. As MacCormick notes, it does not dispense with the need for particular reasons in particular cases.94 This remains a possibility, for we have noted that legal concepts are defeasible, and so more sophisticated applications of a general rule may evolve to meet new or unforeseen circumstances. However, this says little about what justifies a universalised proposition. MacCormick suggests this is done by looking at the consequences of adopting the proposition.95 This recognises the fundamental link between consequences and the requirement of universability. Of course, by treating like cases alike, any decision necessarily has consequences in terms of the treatment of future similar cases.

For MacCormick, only certain consequences are relevant considerations.96 At one extreme one must disregard certain consequences that are too remote as to be unknowable. At the other, one cannot act in ignorance of the foreseeable consequences of decisions. MacCormick admits that consequentialism is controversial and he takes care to address two key objections. First, that it is difficult to delimit precisely what consequences should be taken into account, and secondly, that it is difficult to weigh up various consequences once these have been ascertained. In response to the first obstacle, MacCormick argues that a ruling must be shown to be consistent with pre-existing rules or principles of law. We know this to be wholly plausible because it happens every day within the institutionalised setting of legal decision-making. However, it is also clear that this alone is not enough, particularly in so-called ‘hard cases’, where the law is uncertain or the case involves a complex or novel situation. Here resort must be had to what Rudden has termed juridical consequences and behavioural consequences.97 In the former, the judge will consider the consequences of establishing a rule that will be available in every like case.98 This requires the judge to consider future hypothetical cases that

93See Kant’s formal rule of universality. I Kant, Groundwork of the Metaphysics of Morals, in I Kant, Practical Philosophy, ed MJ Gregor (Cambridge, Cambridge University Press, 1996) 421.

94Above n 29, 78 and 97 ff.

95Ibid 100.

96Ibid 101–2.

97B Rudden, ‘Consequences’ (1979) 24 Juridical Review 193.

98By way of illustration, MacCormick refers to the case of R v Dudley and Stephens (1884) 14 QBD 273, where the court was unwilling to admit a rule which allowed a person to kill another person in (subjectively determined) conditions of extreme necessity.

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would be covered by the rule in order to assess the acceptability of the decision at hand. Behavioural consequences are those that result from the influence of decisions on how people subsequently conduct themselves in light of the law. Of course, such consequences are very much a matter of conjecture, and for this reason MacCormick is cautious about how much weight should attach to them, merely indicating that as a rule of thumb greater weight should attach to those consequences which are more likely to be generated by a rule.99 Ultimately, consideration of the consequences of their decision will commit judges to the unenviable task of accounting for a wide range of values. Fortunately for the judge, MacCormick suggests that these are limited in practice, in part by the branch of law that is implicated by the question, and in part by certain values that are fundamental to legal systems: to live honestly, to harm nobody and to treat all persons with the respect due to them.100 At this point we would add consideration of the principles of jurisdiction, agency and reciprocity outlined in the previous chapter, for these too reflect what may be regarded as fundamental requirements of a legal system.

MacCormick recognises the difficulties inherent in making judgements about such values and weighing up such values.101 This much is perhaps unsurprising and seems to place a potentially insurmountable burden on the decision-maker. Here it is instructive to appreciate that evaluations such as this frequently occur beyond a purely judicial remit. Indeed, an evaluation of consequences, or rather risk assessment, now forms a quite explicit and significant part of the legislative and decision-making process more generally. For example, all new legislative proposals must go through a legislative impact assessment, which considers broadly the potential impact and costs of various legislative possibilities.102 More importantly, in the context of resource regulation and environmental decision-making, impact assessments now form a core part of decisionmaking.103 Such assessments will take into account a wide range of behavioural and other consequences from any proposed decision. Notably these readily include some form of cost benefit analysis.104 One notable

99MacCormick, n 29 above, 110.

100Ibid 115 ff.

101Ibid 117.

102See the ‘Hampton Review’: Reducing administrative burdens: effective inspection and enforcement (London, HM Treasury, 2005). Also Better Regulation Commission, Risk, Responsibility and Regulation—Whose risk is it anyway? (London, Better Regulation Commission, 2006).

103Of particular note are EC Directive 85/337 on the Assessment of the Effects of Certain Private and Public Projects on the Environment (as amended by 97/11/EC and 2003/35/EC), and Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment. See also Art 6 and Annex II of the Convention on Environmental Impact Assessment in a Trans-boundary Context 1991, (1991) 30 ILM 802.

104See, eg, Art 174(3) of the consolidated EC Treaty.

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consequence of this, certainly in the UK, is that courts now tend to focus not on the substance of environmental decisions, but rather review of the decision-making procedure.105 In this sense the practical rather than legal implications of any decision have already been considered outside the judicial process.

The third requirement of legal reasoning is that of reasonableness. Here MacCormick adopts a traditional approach, referring to the well-known structure of reasonable decision-making in public law.106 Thus every public power of decision-making should be exercised with due regard to relevant considerations and without any regard to irrelevant considerations.107 Such relevance is dictated by the terms of the legal authority from which a discretionary power is drawn,108 and only if the decision reached was one that no reasonable person could have reached after a reasonable evaluation of the relevant factors may the decision be challenged.109 By circumscribing the factors that may be taken into account, reasonableness clearly constrains legal reasoning. However, the limits imposed by reasonableness are highly context-dependent:

[t]he very thing that justifies the law’s recourse to such a complex standard as reasonableness in the formulation of principles or rules for the guidance of officials or citizens is the existence of topics or focuses of concern to which a plurality of value-laden factors is relevant in a context-dependent way.110

To the extent that relevant considerations may be dictated by statute or case law, one set of variables at stake in determining whether or not a decision is reasonable is reduced to interpreting the legal source. For example, section 1 of the Sea Fisheries (Wildlife Conservation) Act 1992 provides that a Minster in discharging his functions shall:

so far as is consistent with the proper and efficient discharge of those functions—

(a)have regard to the conservation of marine flora and fauna; and

(b)endeavour to achieve a reasonable balance between that consideration and any other considerations to which he is or they are required to have regard.111

This illustrates how legislation may dictate, at least in part, the relevant factors to be taken into account in delimiting reasonableness.

105See Berkeley v Secretary of State for the Environment, Transport and Regions [2001] Env LR 16.

106MacCormick, n 29 above, 181 ff.

107Anisminic v Foreign Compensation Commission [1969] 2 AC 197.

108Padfield v Minister of Agriculture, [1968] AC 997.

109Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

110MacCormick, n 29 above, 173.

111See further R v Minister of Agriculture Fisheries and Food, ex p Hamble (Offshore Fisheries) Ltd, [1995] 2 All ER 714, on the extent to which legitimate expectations may shape a decision to limit fishing opportunities.

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An important parallel to this approach has been adopted by the European Court of Human Rights in its treatment of property cases. Although the court admits that States have a wide margin of discretion to determine whether or not an interference with private property rights is in the public interest, it has held that such interference must strike a fair balance between the protection of the individual’s rights and the interests of the wider community.112 To determine whether or not a State measure that interferes with property is legitimate, the ECHR subjects that measure to the test of proportionality. The subsequent jurisprudence of the ECHR has developed this test in some detail, and held that factors such as the existence of legitimate expectations,113 procedural guarantees,114 and undue delay or uncertainty over the extent of measures of interference are relevant indicators of proportionality.115 These factors again indicate how law can determine the values relevant to the exercise of decision-making competence.

The need for coherence is well-observed in practice, and has attracted much attention from commentators.116 For the present purposes coherence may be understood to mean the capacity of a norm to make sense or fit within the structure of an accepted set of higher order principles or values.117 One aspect of coherence is that it requires a degree of consistency in the application of norms, that they should not contradict each other. This is important because rules should establish a known and intelligible basis that permits people to plan and carry out their affairs. This is not possible if the law comprises a series of disaggregate and/or contradictory propositions.118 Members of a plenary legal community cannot know in full every detail of every rule that may guide their conduct, but are still expected to act in conformity with the law. However, individuals can reasonably be expected to make sense of fewer general and guiding

112Sporrong and Lönnroth v Sweden (App no 7151/75) (1983) 5 EHRR 35; Also James v UK

(App no 8793/79) (1986) 8 EHRR 123.

113Van Marle v Netherlands, (App no 8543/79) (1986) 8 EHRR 483.

114Hentrich v France, (App no 13616/88) (1994) 18 EHRR 440.

115Erkner and Hofauer v Austria, (App no 9616/81) (1987) 9 EHRR 464.

116See the authorities canvassed by S Bertea, ‘The Arguments from Coherence: Analysis and Evaluation’ (2005) 25 OJLS 369. For an international law perspective, see T Franck,

Fairness in International Law and Institutions (Oxford, Clarendon Press, 1995) 38–41.

117MacCormick, n 29 above, 193. This is evident in the reasoning process of all decisions, although seldom mentioned explicitly. Cf Sullivan v Moody; Thompson v Connon [2001] HCA 59, [55].

118Few legal systems are free of all possible contradictions between rules. This is a result of the plurality of values that direct law, and the fact that many of these may be incommensurable. That said one of the functions of law as a system is to reconcile such conflicts or contradictions as far as possible. In this sense the pursuit of coherence may be regarded as a process.

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principles, with which detailed rules must be coherent.119 In this sense coherence justifies a legal argument because it makes the law intelligible and ascertainable in the absence of full knowledge.

Yet coherence is more than this, it requires rules to hang together for good reasons.120 In this sense coherence contributes to law as a purposive enterprise. So, coherence is determined by reference to a structure of higher order principles that reflect in some way a view of what constitutes a good or satisfactory way of life. This much should be evident from the foregoing discussions about the justification of private property and the three orders of public interest. These higher order values, the reasons from which law is dependent, play a pivotal role in shaping the coherence of particular rules and claims. It may be observed at this point that law does not represent a perfect system, it is constantly evolving towards the better pursuit of existing and new values in light of changing circumstances. This means that as the higher order values that direct coherence evolve, so too must any new norms and claims that are advanced as part of the legal system. In the context of property rights an important development in this respect has been the increasing relevancy of human rights norms and their introduction to the field of environmental protection. This merits some brief consideration because a body of human rightsbased environmental jurisprudence has emerged that justifies significant limitations of property rights or regulation of natural resources in a way that facilitates certain public interests.

The starting point here is Principle 1 of the Stockholm Declaration, which provides that:

[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing, and he bears a solemn responsibility to protect and improve the environment for present and future generations.121

This has in turn influenced a number of legal instruments, including the Aarhus Convention and Article 37 of the European Union Charter on Fundamental Rights. The linkage between human rights and the environment is also now a feature of a number of constitutional provisions.122 The effect of these developments has been to render human rights norms a relevant factor in determining the coherency of property claims, ie decisions concerning the use of property should be coherent with the

119MacCormick, Ibid 201–2.

120Ibid 230.

121Principle 1 of the Stockholm Declaration on the Human Environment: UN Doc A/CONF 48/14/Rev 1 (16 June 1972).

122See the brief survey in A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) Fordham Environmental Law Review 471, 479–82.

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values associated with human rights. This approach is increasingly evident in the jurisprudence of both the ECHR123 and the IACHR.124 These decisions serve to reinforce the claims made in chapter 3, section 2(b) about first order public interest and concern with guaranteeing the conditions necessary for a person’s existence and agency.

Let us summarise the discussion so far. Foremost it must be stressed that law is a normative institutional order. It is a system of rules that enables people to regularise their conduct. Law serves to advance a range of values. Yet it also must provide a coherent and sound basis upon which persons can plan their actions. At a general level, limits on the exercise of legal authority, particularly jurisdiction, may place important limits on how a resource may be used, predisposing certain natural resources to either exclusive or inclusive use regimes. As we will see in the next three chapters, this is particularly important in the context of marine resources. In some cases, the law may explicitly dictate the relationship between public and private interests. However in many cases this is absent or lacking in sufficient detail to resolve legal disputes over conflicting use-claims. The absence of precise rules that fully delimit the private and public uses of property is not fatal to its regulation. Here we may observe how law places limits on the kinds of arguments and quality of arguments that can be brought to bear in a decision-making context. Thus requirements of universability, consequence sensitivity, reasonableness and coherence serve to structure the way in which compelling and ultimately successful delimitations of private rights and public interests may be presented.

(c) Moral Factors that Shape the Relationship between the Private and Public Functions of Property

The vitality of moral explanations of and prescriptions for property reverberate strongly in current discussions about the privatisation of education, healthcare provision, and access to natural resources. Much of the previous two chapters has been concerned with articulating the moral justifications for private and public use of property. Such justifications may place limits on the scope of private property to ensure that persons are able to satisfy their basic needs, to protect and enhance personal

123See, eg, Lopez Ostra v Spain (1995) EHRR 277.

124See, eg, Maya indigenous community of the Toledo District v Belize, Case 12.053, Report No 40/04, Inter-Am CHR., OEA/Ser.L/V/II.122 Doc 5 rev 1 at 727 (2004) esp [154]–[155]. Also

Sawhoyamaxa Indigenous Community of the Enxet People v Paraguay, Case 0322/2001, Report No 12/03, Inter-Am CHR, OEA/Ser.L/V/II.118 Doc 70 rev. 2 at 378 (2003); Comunidad Mayagna (Sumo) Awas Tingni Case, Order of the Court of September 6, 2002, Inter-Am Ct HR (Ser E) (2000).

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autonomy, to promote the efficient use of resources, and reward socially beneficial activities. These justifications also seek to promote social order. Their importance cannot be simply separated from the regulation of property in practice. This is because legal reasoning necessarily takes into account moral considerations.125 Indeed, some writers believe that morality may take precedence. Thus Richard Tur argues that legal norms may be overridden by equitable and other overrides.126 However, I adopt a narrower view of the role of moral reasons. Whilst I accept that law is reason dependent and that this commits us to an inclusive approach to legal reasoning, I reject the idea that law in some way entertains a freeranging moral discourse as part of the legal process. Law may be infused with moral values, but this does not mean that law equals morality. Neither does it mean that all laws are moral laws, or that all moral values are laws. As MacCormick rightly points out, judges (and law-makers one might add) have to ascertain and apply rules in the context of an established legal order.127 This means that moral considerations must be examined through a legal filter, a filter which determines what forms a relevant consideration.

Of course this begs the question as to how we ‘filter’ the content of ‘legal morality’. The answer to this is to look again at the legal rule, or matrix of rules, and to scope out the particular space left for moral considerations. This may be a challenge but it is not insurmountable, and it is possible to illustrate cases that admit moral considerations (or one might just as readily use the terms justice or ‘equitable and over overrides’). As a general rule it seems reasonable to infer that when legal values are imprecise or open there is greater scope for moral reflection.128 So at one extreme the linkage and reduction of moral values to legal values is quite explicit. Thus the rather appositely named doctrine of moral rights preserves for artists limited rights in their works that survive transfer and which prevent certain changes to their work in order to promote both respect for artists and artefact preservation.129 Ultimately this represents a reduction of moral values associated with agency and personhood into law. The interface

125See R Alexy, ‘On Necessary Relations between Law and Morality’ (1989) 2 Ratio Juris 167.

126Above n 85, pp 367–8.

127MacCormick, n 29 above, 148. Similarly, Underkuffler notes the difficulties in identifying the core values to be associated with property claims. She also seeks to defend her position by focusing on value claims not as they might be conceived, but as they are used and understood in law: Underkuffler, n 3 above, 82.

128See Y Feldman and A Harel, ‘Social Norms, Self-Interest and Ambiguity of Legal Norms: An Experimental Analysis of the Rule vs. Standard Dilemma’ (2008) 4 Review of Law

&Economics 81.

129See Art 6bis of the Berne Convention for the Protection of Literary and Artistic Works (Paris revision of 1967) 828 UNTS 221. See further P Masiyakurima, ‘The Trouble with Moral Rights’ (2005) 68 Modern Law Review 411.

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between property rights and human rights appears to be rather fertile ground for this type of inclusive reasoning and the development of moral constraints on property holdings. Thus in Gerhardy v Brown, much of the court’s times was spent evaluating the validity of certain land rights in light of competing values drawn from anti-discrimination legislation and the protection of the indigenous peoples values.130 This approach is particularly evident in the jurisprudence of the Inter-American Commision on Human Rights, where the court has been assiduous in its protection of cultural and spiritual values.131 In other instances judges’ reliance upon moral values to justify decisions is more subtle, perhaps no more so than when they resort to consequentialist decision-making. For example, in Scaramanga v Stamp, Cockburn CJ famously accepted the prompting of humanitarian considerations in the context of rescue at sea:

[t]o all those who have trust themselves to the sea, it is of utmost importance that the promptings of humanity in this respect should not be checked or interfered with by prudential considerations.’132

It is inevitable that decisions reached in a consequence sensitive manner will do so by reference to a wide range of moral considerations.133 At present, it is neither necessary nor an effective use of our time to engage in a full ranging review of how specific legal fields accommodate moral values. It is enough to admit this possibility. Its operation in the specific context of fisheries and natural resources will be considered in subsequent chapters.

4. FORMS OF PROPERTY

Property is a fluid concept, a power relationship that may exist in graduated degrees and be reflected in the specific composition and intensity of the incidents of property. Although real world property relations are complex and variable, it is common to find property organised into broad types that share familial characteristics: private property, common property and collective property. In addition to traditional triumvirate of forms, there is stewardship. Stewardship is characterised by certain public responsibilities inherent in the holding and it is increasingly used to describe the regulation of natural resources. Most States possess mixed property systems which include a range of property forms. Whether or

130(1985) 159 CLR 70, esp Deane J at 150. See also the reasoning of Brennan J in Mabo, n 78 above, at [42].

131See, eg, Maya, n 124 above.

132[1880] 5 CPD 295, 304.

133See ch 2, s 3 and ch 3, s 2(6) above.

Forms of Property 153

not a specific form of property is used to regulate a particular thing is very much determined by context. For example, as indicated in chapter 2 private property only emerges when the object of property is susceptible to a certain degree of physical, legal or moral excludability. It emerges in societies that value individual liberty and so vest the power to determine access to and control of things in individuals. An individual is guaranteed exclusive control of access to the property and over the bundle of social accepted uses. It is suggested that the application of other forms of property are also determined by these factors.

The hallmark of common property is that the owners have no right to exclude others from use of a resource.134 Thus common property is defined by rights of access rather than exclusion. Internally, access to the property is governed according to the idea that the resource is available for every member of the group alike. Externally, common property may resemble private property if access is limited to members of a particular group. Examples of common property include the high seas or grazing rights over land. Common property regimes may arise for a number of reasons. It simply may not be possible to exclude people from a resource, such as the oceans. Or it may be impractical to restrict access. It may be that common property regimes emerge in the absence of formal and structured systems of property. Alternatively, common property rights may be created in order to ensure access to vital resources, such as grazing land. There has been a resurgence of interest in the concept of common property as an alternative means of regulating natural resources.135 Much of this is focused on disputing the suggestion that commons are inefficient and likely to result in conflict.136 Ostrom has been particularly critical of the view that the commons are inherently tragic. In Governing the Commons she sharply distinguishes common property regimes from common pool regimes and provides a number of examples from around the world to show that people can organise themselves in ways which

134See, eg, R (Beresford) v Sunderland City Council [2004] 1 AC 889.

135See generally P Grossi, An Alternative to Private Property: Collective Property in the Juridical Consciousness of the Nineteenth Century (Chicago, University of Chicago Press, 1981); BJ McCay and JM Acheson (eds), The Question of the Commons: The Culture and Ecology of Communal Resources (Tucson, University of Arizona Press, 1987); F Berkes et al ‘The Benefits of the Commons’ (1989) 340 Nature 91; DW Bromley, Economic Interests and Institutions: The Conceptual Foundations of Public Policy (Oxford, Basil Blackwell, 1989); GG Stevenson,

Common Property Economics: A General Theory and Land Use Applications (Cambridge, Cambridge University Press, 1991).

136This was largely inspired by Hardin’s seminal article on the ‘tragedy of the commons’. As indicated above, much of the problem has resulted from a casual use of the term ‘commons’, when in fact what was being critiqued was an open access regime: G Hardin, ‘Tragedy of the Commons’ (1968) 162 Science 1243.

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allow commons to be used productively.137 The core of her argument is that if common property has the same structure of ownership as private property then externalities can be internalised and so common property may result in efficiency or utility. Of course this is contingent on well developed internal rules. Acheson, writing on the lobster fishery of Maine, provides a useful concrete example.138 Here a system of joint or communal property was informally established by the lobster fishing community over an open-access resource.139 The lobster gangs controlled entry into the resource, policed boundaries and enforced fishing rules such as line cutting and trap dumping. Although the system was not entirely successful it partially mitigated a tragedy of the commons.140

The organising idea of a collective property system is that the needs of society as a whole take precedence over those of individuals considered on their own. Examples of public property include national parks and military bases. A fishery could be regarded as collective property because access to it is limited and utilization of the resource is determined according to the use that is most conducive to the collective interests of society. The terms ‘State property’ or ‘public property’ are often used to described collective property because the State, or some public agency, is responsible for controlling the property.141 Vesting ownership in a public agency makes public property a particularly good vehicle for protecting or serving public interests because ownership is detached from the usual self-serving interests associated with private property. The structure outlined appears to reduce collective property to a special form of private property, with the State cast in the role of owner. As a result some commentators, such as Arendt and Berki, have been critical of collective property, arguing that it does not generate a specific normative meaning.142 This becomes apparent when we consider the incidents of ownership. In a collective property regime, a public authority typically may enjoy rights

137E Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action

(Cambridge, Cambridge University Press, 1990).

138JM Acheson, The Lobster Gangs of Maine (Hanover, University of New England Press, 1988).

139The regime demonstrates how property may arise without the law. Ellickson notes how such informal arrangements may arise. RC Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge, Massachusetts, Harvard University Press, 1991).

140Arguably another commons problem lurks within the communal system established. Unless the community establishes limits on the member’s rights to use the resource then a smaller but equally harmful open access regime will continue. See JL Krier ‘The Tragedy of the Commons, Part II’ (1992) 15 Harvard Journal of Law and Public Policy 325, 332.

141CB Macpherson, ‘The meaning of property’ in CB Macpherson (ed), Property, Mainstream and Critical Positions (Oxford, Blackwell, 1978) 5–6. Also S Munzer. A Theory of Property (Cambridge, Cambridge University Press, 1990) 25.

142Arendt argues that because the public cannot exercise anything like the rights of an individual over property it makes no sense to talk of public property. H Arendt, The Human Condition (Chicago, University of Chicago Press, 1958) 256–7. Berki notes that public property

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of possession, use, management, income and capital. For example, the public authority determines who can use the library and how; it may levy charges on users or sell the library or its books on the open market. This approach leads Harris to suggest that the real difference between private property and collective property lies not in the structure of ownership but in the way in which interest in the property is held.143 The importance of the distinction is clearly drawn by Reeve who focuses on the way in which the right must be exercised.144

Under a regime of private property, the owner has a general right to exclude others from the use of his property, but grants the right to use to others, normally in return for value received. In the case of public transport, the owner usually has the duty to make use available to the public, but may nevertheless make charges and employ rationing procedures to discriminate amongst those who might wish to take up the option.145

Although public property is structured in the same way as private property, it is clear that title is vested in an agency responsible for controlling the property in the interest of the public. The public agency that holds the property must establish use and access rules to establish ensure that the property is used to promote social objectives.

Realisation that property may be structured in such a way, with the prioritising of its public function, leads us to consider another form of holding that possesses a strong public function—stewardship.146

5. STEWARDSHIP

Stewardship has been described as an

approach towards problem solving that includes a long-term perspective, a focus on sustainability, and a deliberate attempt to understand and respect the delicate balance of the earth’s ecosystem.147

In this sense it is an approach, or policy, which advocates a responsibility towards the environment. Stewardship has a long theoretical heritage,

refers to such a wide range of arrangements, such as cooperatives, public corporations and nationalised enterprises, that it does not have any concrete meaning. RN Berki, Socialism (London, Dent, 1975) 10.

143JW Harris, Property and Justice (Oxford, Clarendon Press, 1996) 50. It is notable in England that communal property rights over land exist as use or access rights over land that is either privately owned or owned by the State. See, eg, Bettison v Langton [2001] UKHL 24.

144A Reeve, Property (London, Macmillan, 1986) 33.

145Ibid.

146The difference being that in stewardship the holder of the property is a private agent, rather than a public agent.

147R Bratspies, ‘Finessing King Neptune: Fisheries Management and the Limits of International Law’ (2001) 25 Harvard Environmental Law Review 213, 214, fn 4.

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albeit an ambiguous and marginal one, which has struggled in the shadow of the stronger ‘pro-dominion’ approach to the control of resources.148 It is typically characterised as having a number of features: a responsibility towards the environment,149 the duty to conserve the resource,150 the duty to protect resources,151 and a duty towards other people in respect of the resource, which may extend to future generations.152 The fact that such interests are couched in the language of rights and duties suggests that stewardship is more than a mere perspective or policy.153 Of course, the real task then is distinguishing stewardship from other forms of property holding.

As a form of property holding, stewardship, like private property, can be broken down into its component parts or incidents. Many of stewardship’s incidents are the same as for property in general and

148See A Gillespie, International Environmental Law, Policy and Ethics (Oxford, Oxford University Press, 1997) 68–71. Passmore argues that Christian and philosophical discourse about natural resources, up until the 20th century, has been characterised by two approaches—man as the despot and man as the steward. Man’s Responsibility for Nature, 2nd edn (London, Duckworth, 1980). The pro dominion approach is typified in the contemporary institution of private property, which Macpherson labels a form of possessive individualism. The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, Clarendon Press, 1962). The moral acceptability of the individuals as the repository of the benefits of ownership is supported by the notion of man as the master of the earth.

149Much of the development of environmental consciousness took place outside the field of law. Writers such as Aldo Leopold and Henry David Thoreau did much to embed the value of the environment in popular culture and thought. See A Leopold, A Sand County Almanac (Oxford, Oxford University Press, 1949); H D Thoreau, The Maine Woods (London, Harper and Row, 1987) and Walden (1971). This has in turn filtered in to municipal law. See J Sax, ‘Property Rights and the Economy of Nature: Understanding Lucas v South Carolina Coastal Council’ (1993) 45 Stanford Law Review 1433; RJ Goldstein, ‘Green Wood in the Bundle of Sticks: Fitting Environmental Ethics and Ecology into Real Property Law’ (1998) 25 Boston College Environmental Affairs Law Review 347. It has also become an important part of international law. There is widespread acceptance that international obligations to protect the environment do exist. See D Freestone, ‘The Road from Rio. International Environmental Law after the Earth Summit’ (1993) 6 Journal of Environmental Law 227; G Dunoff, ‘From Green to Global: Toward the Transformation of International Environmental Law’ (1995) 19

Harard Environmental Law Review 241.

150EB Weis, In Fairness to Future Generations (Dobbs Ferry, New York, Transnational Publishers, 1989) 50–3.

151See generally, TM Swanson, Global Action for Biodiversity (London, Earthscan, 1997); D Worster, The Wealth of Nature (Oxford, Oxford University Press, 1993); RD Munro and JG Lammers, Environmental Protection and Sustainable Development (London, Graham and Trotman, 1987).

152Eg, EB Weis, ‘The Planetary Trust: Conservation and Intergenerational Equity’ (1984) 11 ELQ 495. Also EB Weis n 150 above, ch 2.

153This point is perhaps controversial. For von Zharen it appears to be a broad policy that encompasses a range of international, regional and national regimes that protect the environment: WM von Zharen, ‘Ocean Ecosystem Stewardship’ (1998) 23 William and Mary Environmental Law and Policy Review 1. Similarly, Skene et al suggest that the move from stewardship rhetoric to reality is yet to be made, and that such a move would not be straightforward. DW McKenzie Skene, J Rowan-Robinson, R Paisley and DJ Cusine, ‘Stewardship: From Rhetoric to Reality’ (1999) Edinburgh Law Review 151, 175.

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it is not necessary to consider them all independently. Commentators on stewardship acknowledge that the steward may retain considerable rights in respect of possession, use, management, income, security, and term over the property.154 Accordingly, we may narrow our focus onto what makes stewardship distinctive. Distilling the literature on stewardship down to its most refined form reveals two key features: the duty to conserve and the duty to preserve. It is worth noting that these duties alone are insufficient to establish stewardship unless supplemented with other incidents of ownership.155 However, these duties have a profound impact on two particular incidents, the right to the capital (which includes the right to exclude) and the prohibition on harmful use. The former must be seriously constrained and the latter emphasised if stewardship is to have any meaning. For present purposes, stewardship may be regarded as a form of holding subject to overriding duties of conservation and preservation. It is a form of property holding with significant legal and moral limits affecting its excludability.

Conservation is the keeping of resources for posterity, as distinct from preservation, which is the saving of resources from harm.156 What makes conservation problematic is the difficulty of defining future needs and then balancing them with those of the present.157 Even if they are given credible weight, this does not mean that people will readily sacrifice immediate needs for them. This difficulty increases as the needs of the future become more remote. Yet such difficulties do not deny the possibility of conservation. At the level of policy, conservation is a matter of choice and as moral philosophers have admitted, such a choice is not inconsistent with rational human behaviour. For example, Kant argued that posterity was a concern of men:

Human nature is such that it cannot be indifferent even to the most remote epoch which may eventually affect our species, so long as this epoch can be expected with certainty158

154See McKenzie Skene, et al, n 153 above, 155; Lucy and Mitchell, n 171 below, 584.

155For example, I may be under a duty not to harm others, but this is not the same as

saying that our respective positions are determined by property rules.

156Passmore, n 148 above, 73.

157Weis provides a more developed concept of conservation under the ambit of the principle of intergenerational equity. This is articulated through three sub-principles. The principle of conservation of options requires the conservation of the diversity of the natural and cultural resource base so that future generations are not unduly restricted in their ability to solve their problems and satisfy their needs. They should be entitled to diversity comparable to previous generations. The principle of conservation of quality requires the maintenance of the quality of the planet so that it is passed on in a condition that is no worse than when the present received it. The principle of conservation of access requires equitable rights of access to members of the community to the legacy of past generations: n 150 above, 38.

158I Kant, ‘Idea for a universal history with cosmopolitan purpose’, Proposition 8, in HS Reiss and HB Nisbett (eds), Kant’s Political Writings (Cambridge, Cambridge University Press, 1970) 50.

158 Reconciling the Private and Public Functions of Property

This may be overly optimistic about the nature of man and his capacity to act towards the ideal but it is not an isolated view. Utilitarian doctrine allows for posterity to feature in the equation where it is sufficiently certain, and where the effects of acts are predictable and probable.159 For Rawls, acting for posterity is consistent with the principle of justice.160 Of course, he freely admits the difficulty of reconciling the interests of the here and now with the interests of the future, but gets round this by proposing the ‘just savings principle’.161 According to this, people put aside for their immediate successors some suitable amount of capital accumulation.162 Conservation clearly contributes to the protection of first order interests, as outlined in chapter 3, and is recognised as a legitimate legal objective in a burgeoning body of rules that seek to protect important natural resources or the environment more generally.163

Stewardship entails preservation—the maintenance of the earth in good condition. The extreme preservationist position demands that as natural resources have an inherent value apart from man, they should be preserved even to the detriment of man. This position is clearly objectionable, as it may lead to the situation where any action is impossible.164 Any meaningful notion of preservation is one that must be compatible with the practical reality of man’s relationship with the environment. It requires a balance between meeting man’s needs and maintaining the earth in good condition. Thus, a more persuasive argument for preservation points out that environmental degradation risks the loss of any resource potential. The earth should be maintained because it has an instrumental value to man; it provides among other things economic goods, the means to pursue research and aesthetic pleasure. Like conservation, preservation

159TL Sprigge, ‘A utilitarian reply to Dr McCloskey’ in MD Bayles (ed) Contemporary Utilitarianism (Garden City, New York, Anchor Books, 1968). Cited in Passmore, n 148 above, 84.

160J Rawls, A Theory of Justice (Oxford, Clarendon Press, 1972) 284 ff. See also H Sidgwick, The Methods of Ethics, 7th edn (London, Macmillan, 1907) bk 4, ch 1, p 414.

161Rawls, Ibid 286.

162To act for posterity does not require us to consider all future generations, for this would lead to absurdities. Accordingly, Rawls concedes that only immediate successors should be considered. This is consistent with justice, for all generations do not know their place in time in the original position and so will reach the same conclusion about just outcomes: Ibid.

163By way of illustrating this, reference may be had to any number of instruments, including the World Charter for Nature, GA Res 7, para 36 UNGAOR Supp (No 51) at 17, UN Doc A/51 (1982); the Convention for the Protection of World Cultural and Natural Heritage 1972, 1037 UNTS 151; the Convention on Wetlands of International Importance 1971, 996 UNTS 245; the Convention on the International Trade in Endangered Species of Wild Flora and Fauna 1973 (CITES), 993 UNTS 243; the Convention on the Conservation of Antarctic Marine Living Resources (1980) 19 ILM 837.

164Passmore, n 148 above, 126. Arguments based on inherent value are often derived from the claim that animals and wildlife form part of a common natural community and that they should be attributed independent worth, and rights, accordingly. This fails because they do not form a community capable of generating ethical duties—there is no common interest: Ibid 116.

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contributes to first order interests. These prevail over other interests and dictate how property rights may evolve in respect of particular natural resources. This rationale of preservation resonates clearly in a number of political and legal declarations including the Rio Declaration and Agenda 21.165 Doctrinally it is being articulated in other principles. Most obvious among these is the precautionary principle.166

Although conservation and preservation are cogent concerns, the question remains how to accommodate stewardship within existing legal institutions and processes. More precisely, is it merely something that is grafted onto existing property structures, or is stewardship a distinctive form of holding? Commentators appear to be divided on this matter. Adopting the former approach, Yannacone regards stewardship as embodied in the notion of social property.167 ‘Social property’ is

property which has become vested with the public interest to such an extent that the property itself can be considered dedicated to public use.168

US agricultural lands are a prime example of this ‘social property’.169 Similarly, Karp notes that ‘the duty of stewardship requires that the owner use and maintain the land in a manner that will not interfere with any significant natural resource value that it may contain’.170 In this sense, stewardship appears to be ownership subject to certain duties. On the other hand Lucy and Mitchell argue that stewardship is wholly inconsistent with the notion of private ownership:

The hallmark of stewardship is landholding subject to responsibilities of careful use, rather than the exclusive rights to exclude, control and alienate that are

165UN Declaration of the UN Conference on Environment and Development, UN Doc A/ CONF 151/26/Rev 1. Available in (1992) 21 ILM 874; UNCED, Report of the United Nations Conference on Environment and Development Rio de Janeiro, 3–14 June 1992 (1993).

166See generally T O’Riordan and J Cameron (eds), Interpreting the Precautionary Principle (London, Cameron May, 1994); D Freestone and E Hey, The Precautionary Principle and International Law (London, Kluwer International, 1996). Principle 15 of the Rio Declaration provides that: ‘[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’: n 165 above. The status of the principle remains a matter of contention. Bodansky has argued that uncertainties as to its application prevent it emerging as a principle of international law. D Bodansky, ‘Scientific Uncertainty and the Precautionary Principle’ (1991) 33 Environment 4.

167VJ Yannacone, ‘Property and Stewardship—Private Property Plus Public Interest Equals Social Property’ (1978) 23 South Dakota Law Review 71, 74.

168Ibid.

169Ibid.

170JP Karp, ‘A Private Property Duty of Stewardship: Changing Our Land Ethic’ (1993) 23 Environmental Law 735. See also L Caldwell, ‘Rights of Ownership or Rights of Use?—The Need for a New Conceptual Basis for Land Use Policy’ (1974) 15 Willian and Mary Law Review 759, 775 and ‘Land and the Law: Some Problems in Legal Philosophy’ (1986) University of Illinois Law Review 319, 323.

160 Reconciling the Private and Public Functions of Property

characteristic of private property. The steward is in essence a duty bearer, rather than a right-holder.171

They continue to argue that the steward does not enjoy the fullest extent of the trinity of rights essential to private property: control, exclusion and alienation.172 As the thrust of stewardship is so contrary to the typical incidents of private ownership, it cannot be regarded as a form of private property. What is important to note is that each approach highlights the problems of establishing a holding that combines a complex blend of rights and duties that may come into conflict, and that traditional forms of property ownership structures are not suited to accommodating this. Significantly, the former approach fails to consider the point that stewardship is incompatible with the entire ethic of private property, ie absolute individual rights. Holdings subject to overriding public duties are normally held as collective property with some public agency cast in the role of owner. However, it is clear that stewardship includes property privately held, as most natural resources are not in State ownership. As such neither private property nor collective property readily account for stewardship type holdings. Common property is even less well-suited to frame stewardship responsibilities, given the high degree of regulation required to conserve and preserve natural resources. Exclusion from natural resources forms a necessary means to these ends. It is suggested that stewardship may be distinguished from other forms of property as constituting a form of individual holding that is subject to overarching public duties.173

A number of stewardship commentaries seize onto the idea of the public interest to provide an account of the public duties that define the

171WNR Lucy and C Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55 CLJ 566, 584. Earlier, they rely on Waldron’s assertion that the key organising idea of property is the idea that the resource belongs to some individual. See J Waldron, The Right to Private Property (Oxford, Clarendon Press, 1988) 38–9.

172The trinity is the rights of control, exclusion and alienation: Ibid 569.

173Such regimes are not at all uncommon. Gray has demonstrated that property institutions are easily capable of incorporating common interests. K Gray, ‘Equitable Property’ (1994) 47 Current Legal Problems 157. For example, in common law systems the notion of ‘equitable property’ has emerged to ensure access to quasi-public property or traditional lands. See, eg, Robins v Prune Yard Shopping Centre (1979) 592 P2d 34. In Canada the Supreme Court, in The Queen in Right of Canada v The Committee for the Commonwealth of Canada (1991) 77 DLR (4th) 385, has moved in a similar direction. In Australia in particular the courts have come round to the idea that the State owes a distinctive fiduciary obligation to deal with land for the benefit of its native people. See Mabo v Queensland, (1992) 175 CLR 1, 42. In America this function has often been served by the public trust doctrine. See Illinois Central Railroad v Illinois (1892) 146 US 384. Traditionally this was confined to State ownership of navigable waters and tidelands, but it has gradually been expanded. The Supreme Court of California has stated that the public trust doctrine is ‘more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands. See National Audubon Society v Superior Court of Alpine County 658

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duties by which the individual holding in defined.174 However, Lucy and Mitchell are critical of this approach.175 First, they suggest that the public interest is too vague to be of any use. Secondly, if it refers to a particular substantive policy or set of policies, then this begs the question, how do we ascertain those policies? Thirdly, if it signifies the majority view, how is this reconciled with individual interests? The concept of the public interest outlined in chapter 3 answers these criticisms, suggesting that the public interest has both a coherent content and structure, both of which can be ascertained through provisions of positive law. Without too much controversy, the following may be put forward as the minimum content of the community interest in natural resources: satisfaction of basic human needs, the existence of a healthy and sustainable environment,176 the maintenance of biodiversity,177 and the reasonably efficient use and production of resources.178 Stewardship is most potent in the context of natural resource regimes because such resources have a more immediate connection with first order interests, ie natural resources comprise the core focus of first order interests.179 In this sense, their physical attributes predispose

P2d 709, 724 (1983). Sax has been particularly influential in advocating this approach. JL Sax ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1969–70) 68 Michigan Law Review 471 and ‘Liberating the Public Trust Doctrine from its Historical Shackles’ (1980–1) 14 University College Davis Law Review 185. See also JE Van Tol, ‘The Public Trust Doctrine: A New Approach to Environmental Preservation’ (1978–9) 81 West Virginia Law Review 455; A Reiser, ‘Ecological Preservation as a Public Property Right. An Emerging Doctrine in Search of a Theory’ (1991) 15 Harvard Environmental Law Review 393. On the use of trust-based mechanisms under international law, see C Redgwell, Intergenerational trusts and environmental protection (Manchester, Manchester University Press, 1999).

174See Karp, n 170 above, 750; Yannacone, n 167 above, 74; Caldwell n 170 above, 759.

175See Lucy and Mitchell, n 171 above, 587 ff.

176Thus the World Charter for Nature describes terrestrial and marine ecosystems as life support systems. 1982, UNGA Res 37/3 (XXXVII). (1983) 32 ILM 455. By and large most accounts of the human condition recognise that certain basic human needs are to be secured. See eg, Rawls who has his ‘floor thesis’, n 160 above, ss 8–9; See generally, A Sen et al, The Standard of Living (Cambridge, Cambridge University Press, 1983).

177Whether one has an anthropocentric perspective or an essentialist view of the environment, it remains true that a certain minimum quality of physical environment is a precondition for continued human life.

178One of the principal benefits of private ownership is that it generates a degree of efficiency in holdings. Where these do not interfere with other community interests then they are an attractive benefit to the community and should not be rejected out of hand. Of course this raises questions about how possibly competing community benefits, eg efficiency and conservation, are to be reconciled. See CM Rose, ‘A Dozen Propositions on Private Property, Public Rights, and the New Takings Legislation’ (1996) 53 Washington and Lee Law Review 265; BH Thompson Jr, ‘Conservation Options: Toward a Greater Private Role’ (2002) 21

Virginia Environmental Law Journal 245.

179Beyond the question of natural resources, stewardship may have a role to play in securing other community interests. This may include a community’s particular aesthetic standards, religious doctrine, cultural values, and so on. In such cases, the mutable and subsidiary quality of the interests suggest that the legal duties of the steward may be less intrusive than that for natural resources.

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of property. Ultimately, the reason dependency of legal norms commits us to the position that the relationship between private rights and public interests is determinable. This is because there are no strict priorities of interest (moral values) within a pluralist setting. Despite this we are able to rely upon certain qualities of reasoning, both legal and moral, to shape the form and ‘weight’ of claims to use property in either an exclusive or inclusive way. The degree to which inclusive, exclusive and shared claims to property possess these factors, ie the attributes of universability, consequence sensitivity, reasonableness and coherency, will render them more or less compelling as a matter of legal reasoning. These constraints of practical reason, in combination with certain limitations that flow from the inherent physical qualities of a resource shape will determine the eventual rule structure that regulates property. The influence of these factors is evident in the various forms of property, and the predisposition of natural resources to stewardship-based forms of holding.