The Morality of James Harris’s Theory of Property

Jim Harris sidestepped the issue of the formal relationship between and morality neatly, by avoiding an inquiry into the nature of Harris wished to free himself the trappings of all too familiar jurisprudential debates, focusing rather on what one might call the substance of property: its contours and its justifications. Indeed, in terms of the structure of the book, Harris appears to give both the legal and the moral their respective due: the formal division of his book Property and Justice is in two parts, one describing in its social and legal practice and the other setting out its justifications. In terms of what has famously been called descriptive sociology, any institution was comprised of trespassory rules protecting rights along a spectrum of ownership, and none of the various 'property' outcomes were necessarily determined by some of 'true property'. With respect to moral discourse, any specific institution in any society had to in some way pass muster in a justificatory discourse focused on itself: property-specific justice reasons. This formal separation of Parts I and II is an aptly symbolic embodiment of the positivist reconciliation: contingent connections but no necessary one; a rich institution, but no true one. And yet, by the end of the argument, property, and indeed private property, is infused with a great deal of moral weight: while not true, it is laced with a great deal of justice. My purpose here is to assess Harris’s contribution by bringing to light some of his own moral assumptions, and by viewing his theory in light of some more explicitly moral theories of property. These latter theories tend to be North American in origin (perhaps a reaction to the excesses of rights talk in these parts), and not always framed in the analytic terms of Oxford legal discourse. The purpose of this paper is to survey this terrain and look for commonalities and differences, and to identify and elaborate some of the implications of the divergent positions. The conclusion that I shall reach is that Harris’s overall theory of does indeed exhibit an internal morality, one which is grounded in the fostering of individual autonomy and development and that can form the legitimate basis of a human right to property. The more weight one gives in its role in human development, the closer one gets to positing it as a human right and calling it a component of justice. Thus Harris’s of does contain what are in effect moral rules or assumptions, and the line between necessary and contingent becomes obscured by talk of as a human right. This thin view of justice differs from other defensible moral theories of that have a wider grounding, particularly in non-individualistic goals. The differences between the two approaches will be most manifest in what one might the call the clash between concept and context in both the understanding and justification for private property, a fundamental tension that runs throughout scholarship. ' None of this means that there necessarily exists a form of property which can be deduced through reason and that becomes the standard to adjudicate other manifestations of the phenomenon.

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