Classical liberals like Friedrich Hayek and Richard Epstein have often claimed that the rule of law imposes strong constraints on the state's regulation of private property. If they are right, this would be a very effective argument against such regulation, as the rule of law is an ideal commanding wide respect, by no means confined to those of classical-liberal or libertarian inclinations.
Governments that arbitrarily deny legal process to groups of people or punish people for violating orders undisclosed to them obviously violate the rule of law; but how can formal requirements of proper law such as generality and nondiscrimination limit the power of the state to regulate property? The classical liberals answer that people should be able to use law to guide their behavior; interferences with private property disrupt their reasonable expectations of how they can use their property and unduly depend for their implementation on administrative discretion.
Jeremy Waldron, a distinguished legal philosopher, disagrees with this line of thought; and in this short book he deploys many arguments against it and against Lockean accounts of property rights as well. I don't find what he says persuasive, but his thoughtful discussion merits the attention of everyone interested in libertarian political philosophy.
Waldron has devoted a great deal of his life as a scholar to Locke's theory of property, but his study has not led him to accept it. In this theory, people acquire property by homesteading it; once acquired, property may be transferred by exchange, gift, or bequest to others. A common objection holds that this account can have little or no application to the world we live in today. People cannot trace their property back to an original act of just appropriation, passed to them through transfers wholly legitimate.
Waldron advances a variant of this argument. Not only cannot we trace back property titles in the way the theory needs, but we know that property titles often stem from government grants. He is a New Zealander, and he cites as an example the situation in his native country. "But mostly the land seems to have been governed by social and public legal arrangements from start to finish. It was used and cultivated first by a collective group, its original Maori owners" (p. 29). It then passed by treaty to the British government who in turn transferred it to settlers.
The transition from indigenous tribal property to government property to leasehold property on the government's terms to individual freehold is something that was supervised by the state purportedly in the public interest at every stage. (p. 30)
What better evidence could we have that the Lockean theory cannot be used by present owners of property in New Zealand to resist government regulations as encroachments on their rights?
This argument does not succeed; it begs the question against Locke's theory. So long as the original acts of appropriation by the Maori passed the Lockean tests, which Waldron does not challenge, the process Waldron describes at no point violates Locke's theory. It is not a part of that theory that the state cannot be one of the links in the chain of transmission of property, though indeed there are excellent arguments against the justification for a state altogether. The state can, if it acquires property, then sell it to people under various conditions, but its doing so does not subject the new owners to further unspecified regulations of their property by the state. To think otherwise, as Waldron does, is to assume precisely what is at issue in the controversy. His account of New Zealand property leaves Locke unscathed.
Waldron has another argument against the Lockean view, and here he addresses directly the concerns about expectations used by Hayek, Epstein, and others who use the rule of law to fence in the government's interference with property rights. Do Lockean rights, he surprisingly asks, increase stability of expectations? He claims that they do not:
The [Lockean] picture we are being sold has property rights being determined pre-politically; these are the ones that are to respected by the legislature under this substantive constraint. (p. 38)
But the Lockean theory is controversial. Even among people who accept the basic outlines of it, disagreements over such matters as the exact nature of the principle of appropriation abound. "By insisting therefore that positive law is subject to this substantive constraint rooted in the moral reality of pre-political property rights, Locke is subjecting the legislature to a discipline of uncertainty" (p. 39).
This conclusion does not at all follow. A Lockean framework leaves many questions of detail unsettled, true enough; but then people must simply choose what to do within this framework and stick to it, in order to arrive at a stable system of property. Why must a correct theory of property resolve in advance all questions, leaving nothing to be decided by convention? Further, even if details of the theory do admit of correct answers, the fact that people disagree on these need not introduce instability. Those who think the arrangements in place objectively mistaken on these details may nevertheless think it more important to maintain stability than to insist that matters be changed entirely to their liking.
Although Waldron does not discuss this solution, he does address a proposal advanced by James Tully, which he acknowledges would settle the difficulty over stability. (He thinks, though, that it is a misinterpretation of Locke.) On this view, the legislature sets property rights as it wishes: it is these legislatively determined rights that are then stably established.
On Tully's account, the property rights that are protected are themselves artifacts of public law. As such, they are clear, well known, and stable; and they are no longer at the mercy of natural law controversies. But the price of that deliverance is that the property rights in question, being the offspring of legislation, can have very little power and status to set up against legislation (of the environmental kind). Property is no longer privileged as a special or primeval form of law. (p. 41)
Once more the conclusion does not follow. So long as stability is taken to be of great importance, Locke's theory on this interpretation does not allow the legislature to change property arrangements in accord with its wishes of the moment. Waldron, anxious to pursue his environmental imperative, has forgotten the elementary point that laws can be entrenched in a legal system without reference to natural-law constraints.
Before turning from Waldron's discussion of the Lockean theory, I must protest against what can only be called a gross misstatement. Concerning Robert Nozick, one of the foremost 20th-century defenders of the theory, he says,
he was never prepared to say that a Lockean theory legitimized contemporary disparities of wealth in the United States. On the contrary, he thought it undeniable that contemporary holdings in America would be condemned as unjust by any remotely plausible conception of historical entitlement. (p. 33)
To this statement, he appends a reference to pages 230–231 of Anarchy, State, and Utopia. It is quite true that Nozick in those pages says that schemes of transfer payments cannot be condemned as unjust by his theory, in the absence of information of what the principle of rectification requires. There is nothing whatever there, though, condemning contemporary American disparities of wealth. Waldron has unaccountably attributed his own egalitarian proclivities to Nozick.
As mentioned earlier, Waldron advances a great many arguments to challenge the connection of the rule of law with restrictions on the legislative regulation of property, but I shall discuss only one more. Waldron has an interesting view of the famous Lucas case, in which a businessman purchased beachfront property in South Carolina, intending to build houses on the land for commercial sale. A law passed after the sale by the South Carolina legislature prevented him from doing so, and he suffered a large loss as a result. He appealed to the Supreme Court, which ruled that he had been the victim of an unlawful "taking" of his property and required that he be granted compensation for his losses.
Waldron finds fault with the verdict. Given the many environmental regulations already enacted by the legislature, should not Lucas have anticipated that he might not have been able to use the property as he wished? How then can one rightly assert, appealing to the rule of law, that he had the right not to have overturned his reasonable expectations of how he might use the property commercially? He ought not to have assumed without warrant that he could do with the property what the legislature later determined he could not.
True, Mr. Lucas bought his property in 1986, a year or three before the new legislation came into force. But he was not a neophyte in these matters.… Mr. Lucas was not exactly sand-bagged by the council's eventual intervention to safeguard the eroding beaches on and in the immediate vicinity of his property. (pp. 79–80)
In sum, Waldron thinks if someone has reason to think that the government may take from him the right to use his property for commercial use, then his reasonable expectations for use of the property have not been upset. He ought not to have formed these expectations in the first place. By analogy, someone's expectations of personal security have not been upset if he knows that he may in future be compelled to play Russian roulette. Somehow, this does not seem a satisfactory result.